The Terms and Conditions of Use (“Terms of Use”) contain important information such as, but not limited to, fees, service limitations, automatic software updates, installation of software, and limitation of liability. Please read in its entirety.
These Terms of Use create a legal binding agreement between the subscriber (“you” and “your”) and BMW Canada Inc. (“BMW”), governing the provision of BMW Motorrad Assist Services and other services BMW Motorrad may provide (together, “BMW Motorrad Assist Services” or “BMW Services”) to your BMW motorcycle.
YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF (i) YOURSELF, (ii) ANY PERSON OR ENTITY WHO HAS PURCHASED OR LEASED YOUR MOTORCYCLE FROM YOU, AND (iii) ANY RIDER OR PASSENGER (E.G. ADDITIONAL RIDERS AND/OR PASSENGERS) OF THIS MOTORCYCLE. YOU REPRESENT AND WARRANT YOUR AUTHORITY TO DO SO. YOU AGREE THAT YOU WILL MAKE ALL OF THE RIDERS/PASSENGERS OF YOUR MOTORCYCLE, WHETHER PASSENGERS, GUESTS OR RIDERS OF YOUR MOTORCYCLE, AWARE OF OUR RIGHTS AND SUBJECT TO THE LIMITATIONS OF THIS AGREEMENT. BY ACTIVATING AND USING THE BMW MOTORRAD ASSIST, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE, DO NOT ACTIVATE AND USE THE BMW MOTORRAD ASSIST.
The terms “you” and “your” used in these Terms of Use shall be deemed to refer to, and these Terms of Use shall be binding upon, any individual or entity that has purchased or leased the motorcycle or uses the motorcycle as a rider/passenger.
BMW Motorrad, through its third-party provider (the “Telematics Service Provider” or “TSP”), will provide you with mobile monitoring and support services, including but not limited to the BMW Services selected and included in the service plan you have selected at the current published rates. A description of the BMW Services appears in your at www.bmw-motorrad.ca. BMW and the TSP reserve the right, without prior notice, to add, change or delete services included in the BMW Services provided to you. BMW and the TSP may, but are not obligated to, use dashboard communication (for example message display) to inform you about BMW Services or other messages.
BMW may use the BMW Services to access or locate the motorcycle, if: i) the motorcycle has been reported stolen to BMW; ii) required by operation of law or court order; or iii) BMW reasonably believes that you are in breach of these Terms of Use, or you are in breach of the motorcycle lease /finance agreement with BMW Financial Services Canada, a division of BMW Canada Inc., or any other agreement with BMW, or in which BMW is a beneficiary thereof relating to the vehicle.
BMW Services may use commercial mobile wireless services purchased from one or more third party providers (the “Underlying Wireless Carrier”). The Subscriber Agreement and these Terms of Use do not give you any rights against the Underlying Wireless Carrier selected for the BMW Services. The Underlying Wireless Carrier is, however, an intended third party beneficiary of the protections of the Subscriber Agreement and these Terms of Use. If your motorcycle is equipped with a Wi-Fi hotspot, you may connect your personal device to the hotspot; however, access to the internet may require you to register with the Underlying Wireless Carrier and purchase a data plan. For new motorcycles, a preliminary trial offer may be available.
The BMW Services are provided by BMW through its TSP, using a device and other hardware installed in your motorcycle (“Telematics Control Unit”) which receives global positioning satellite (GPS) signals and communicates with the response center via wireless and land-line communications networks. The availability and use of BMW Services are subject to a series of limitations inherent in the use of GPS, wireless and land-line communication, including, but not limited to, the following: (a) Services are available for the period of time outlined in the Subscribed Service Package (“Service Package”) section on page 1 of the Subscriber Agreement or for as long as the service is provided by BMW or TSP. The initial term of the Service Package is provided at no charge to you (“BMW Paid Period”). BMW Services can be renewed after this period subject to availability. It is the owners responsibility to renew the subscription to ensure BMW Services are renewed annually; (b) Services are available only if your BMW Services have been initialized at an authorized BMW Motorrad retailer, motorcycle ignition is on (except for stolen motorcycle recovery), and your motorcycle battery is charged and connected; (c) Services are available only if you are within operating range of the designated wireless network; (d) Services are available only when the Telematics Control Unit is in range of a transmission site of the Underlying Wireless Carrier, or a transmission site of another company that has agreed to carry its calls, and there is sufficient network capacity at that moment; (e) Services will not be available if the wireless network requires the use of PIN Codes; (f) Services may be impaired by land-line and wireless communication problems caused by atmospheric or topographical conditions, busy cells, capacity limitations, equipment problems, equipment maintenance, and other factors and conditions; (g) Services may be affected by inherent limitations of your motorcycle’s electrical system and architecture, or if any of the components of your motorcycle’s Telematics Control Unit have been damaged or are defective; (h) Services are not available if the GPS system is not working or the signals are obstructed; (i) certain programming limitations of the GPS system may impair the TSP’s ability to determine your motorcycle’s precise location; and (j) Services may be limited to geographic areas where map data and emergency (911) contact information is available in the TSP’s databases, which may be less than that which is otherwise generally available. Your BMW Services system uses either analog or digital cellular telephone signals. If the wireless carrier or BMW terminates or restricts analog or digital service, the BMW Services will not be available.
You may terminate your account for BMW Services, upon written notice to BMW. If you sell your motorcycle during the BMW Paid Period, you will not be entitled to any refund. If you have prepaid for BMW Services and sell your motorcycle or decide to cancel your Service, you may apply for a refund, subject to the conditions below. Conditions include: A full refund for all of the subscription terms, except for the 1-month subscription, is available within the first 30 days from the date of purchase. All 1-month subscriptions are non-refundable. In the event the service is no longer available, you will receive a pro-rated refund for the remainder of the subscription term, except for the 1- month and Unlimited subscriptions. Subscriptions are non-transferable between motorcycles. Unlimited subscriptions remain available for as long as the service is provided by BMW or TSP. In the event a service, subject to an unlimited subscription, is no longer provided by BMW or TSP, the subscription is to be considered as concluded and no refunds will be owed. A Service will end at the expiry of the term, unless renewed by you. For Service(s) which have an automatic renewal at expiry, you or BMW may select to cancel the Service(s) upon providing at least thirty (30) days written notice of non-renewal prior to the expiry of the term. A Service with an unlimited term may also be cancelled by you upon providing at least thirty (30) days written notice of cancelation. A Service with an unlimited term for which you are paying a subscription fee, may be terminated as follows: a) by you at any time with effect from the next payment date or b) immediately by BMW for non-payment of the subscription fee.
You agree: (a) to only use the BMW Services when it is safe to do so; (b) to be fully responsible for the protection of your login credentials; (c) to only use the emergency, roadside, stolen motorcycle recovery services for actual emergencies; (d) to follow all instructions for use of the Telematics Control Unit and the BMW Services; (e) to furnish all necessary contact or other information reasonably requested by the TSP and to notify BMW promptly by contacting BMW of any change in such information or any change in the ownership of your motorcycle; (f) to properly maintain your motorcycle and the Telematics Control Unit; (g) not to use the BMW Services in violation of any laws, rules or regulations applicable to you or for any unlawful or abusive purpose; (h) not to use the BMW Services in any manner that could harm the TSP, BMW, or the Underlying Wireless Carrier, or any other person; (i) if available, to only use the map, routing and traffic information and other content included in the BMW Services for your own personal use and not to resell, retransmit or modify the information and content for any purpose or reason whatsoever; During the process of executing this agreement, you will be required to identify yourself as the Primary Subscriber. You are responsible for managing the settings in the BMW Motorrad App that activate or deactivate the automatic subscriber setup.
THE INITIAL TERM OF SERVICE IS DURATION SPECIFIED (A) FOR SERVICES ON THE BMW MOTORRAD WEBSITE, OR (B) IN THE MOTORCYCLE’S RIDER’S MANUAL. BMW may, at its sole discretion, extend, amend, withhold or cancel certain services. You may cancel Services either by sending a written cancellation notice to BMW or by providing written notice to your authorized BMW Motorrad retailer.
If applicable, subscription fees for the Service plan you have selected is payable in advance of the initial term. The subscription fee is refundable as described in section 5 of these Terms of Use. By providing your credit card number, you authorize either BMW or your authorized BMW retailer, on behalf of BMW, to charge your account for all fees, taxes and all other amounts due and payable under the Subscriber Agreement.
You are responsible for, and agree to pay, all taxes, fees and charges imposed on you in connection with the purchase and installation of the Telematics Control Unit and the provision and use of the BMW Services.
From time to time, BMW may modify the BMW Services or Terms of Use at any time in its sole discretion by giving you notice on its website or App. We may also give you notice by posting a new version of the Terms of Use to www.bmw-motorrad.ca or on the App. These modifications do not affect rights and obligations that arose prior to such changes. If you do not agree with any modification, then please stop using the BMW Services. Your continued access or use of the BMW Services after our notice indicates your acceptance to the modified Terms of Use. BMW may, in its sole discretion, change, suspend, or terminate the BMW Services with prior notice to you (including on its website or App), including, without limitation, as a result of changes in laws, wireless carrier, or technology. You shall frequently monitor BMW websites or a website that replaces that website, or app for modifications to the BMW Services or Terms of Use. From time to time, BMW may, in its sole discretion, make minor or non-material changes to the BMW Services or Terms of Use without prior notice.
If it is determined that your usage of the BMW Services is so excessive that it interferes or could interfere with the ability to provide timely, high-quality Services to its other subscribers, or if it is determined that your usage constitutes a nuisance or is otherwise not consistent with the terms of the Subscriber Agreement or the Terms of Use, BMW may in its discretion suspend, modify or terminate the BMW Services provided to you, without any advance notice or liability. For purposes of this section, excessive use is defined as more than 100 uses in a given month. These rights are in addition to those in “Default and Termination” below.
When the TSP receives an emergency signal from your motorcycle, the TSP will attempt to determine if an emergency exists. If the TSP determines that an emergency exists, the TSP will attempt to contact a public safety provider or answering point to request assistance. The TSP may also attempt to call one of your third party emergency contacts. By providing emergency contact information for those individuals, you are obtaining authorization for BMW to contact these individuals for emergency purposes. You acknowledge that you will not rely on the Services alone in an emergency situation but will take all other reasonable steps to address the emergency situation. The TSP cannot call you on your Telematics Control Unit (motorcycle with an embedded Telematics device). Neither the TSP nor BMW guarantee that the TSP will receive an emergency signal or call from your motorcycle. You agree that the TSP, the Underlying Wireless Carrier, BMW, and their parent companies, related or affiliated companies and divisions or any assigns or successors, and their respective officers, directors, employees, agents, or representatives in no way guarantee, represent or warrant that the TSP will successfully contact the appropriate emergency agency or your third party emergency contacts, or that emergency personnel will respond to the call or locate your motorcycle. You acknowledge that neither the TSP, BMW, nor their parent companies, related or affiliated companies, and any of their respective officers, directors, employees, agents, and their successors or assigns, as applicable, nor the Underlying Wireless Carrier will be held responsible for any failure or delay in responding to an emergency or for the quality of service delivered, regardless of fault including, but not limited to, where the failure is the fault of the TSP, BMW, its assignee, the Underlying Wireless Carrier or any third party service provider. You release BMW, the TSP, the Underlying Wireless Carrier and any other third party service providers, and their parent companies, related or affiliated companies and divisions or any assigns or successors, and their respective officers, directors, employees, agents, or representatives from all liabilities and losses (including physical injury or death) that you or others may suffer in an emergency situation.
You shall not, and shall not attempt to: a) sell, rent, lease, sublicense, lend, assign, publish or time-share the BMW Services, or any component thereof; b) reverse engineer, decompile or disassemble the BMW Services or any component thereof; c) circumvent any technological measure(s) that control access to or use of the BMW Services; d) alter, remove or obscure any patent, copyright, trademark or proprietary rights notices contained in or affixed to the BMW Services; e) unbundle individual or component parts of the BMW Services; f) use, incorporate, modify, distribute, provide access to, or combine any software component of the BMW Services in a manner that would subject that software or any part of it to open source license terms; (g) install, alter, or transmit into or via the BMW Services any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs, spiders, web-bots, screen-scrapers, or web crawlers or other items of a destructive or disruptive nature; (h) cause or assist any third party in doing any of the foregoing.
ANY ATTEMPT BY ANY USER OR ANY OTHER INDIVIDUAL OR ENTITY TO DELIBERATELY DAMAGE THE BMW SERVICES OR UNDERMINE THE LEGITIMATE OPERATION OF THE BMW SERVICES IS A VIOLATION OF THE SUBSCRIBER AGREEMENT AND THE TERMS OF USE. BMW RESERVES THE RIGHT TO INVESTIGATE ANY SUSPICIOUS ACTIVITY AND TO TAKE ALL SUCH ACTIONS AGAINST AND OBTAIN SUCH REMEDIES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY LAW. BMW RESERVES THE RIGHT TO DISCLOSE ANY INFORMATION ABOUT YOU, INCLUDING YOUR ACCOUNT AND ACCESS TO AND USE OF YOUR ACCOUNT, TO LAW ENFORCEMENT AS NECESSARY TO ENFORCE THE SUBSCRIBER AGREEMENT AND THE TERMS OF USE.
If you fail to timely pay any amount due under the Subscriber Agreement or pursuant to the Terms of Use, BMW may suspend or terminate the BMW Services. If BMW determines that you have violated the Subscription Agreement or the Terms of Use and such breach impacts BMW's, the TSP’s or any other service provider's ability to service its other customers, BMW may suspend or terminate the BMW Services without notice or liability as determined by BMW in its sole discretion. If you breach any other term of the Subscriber Agreement or the Terms of Use, BMW may suspend or terminate the BMW Services. These rights are in addition to any other rights that the TSP or BMW may have. If the TSP or BMW brings an action to enforce its rights against you, you agree to pay all reasonable costs of enforcement, including reasonable legal fees and costs. In addition to any other termination and suspension rights provided in the Subscription Agreement and the Terms of Use, BMW may terminate or suspend all or some of the BMW Services at any time for any reason by giving you prior notice. YOU HEREBY ACKNOWLEDGE THAT IF BMW SUSPENDS OR TERMINATES SERVICES FOR ANY REASON, YOU WILL NOT BE ABLE TO ACCESS ANY OF THE BMW SERVICES, INCLUDING EMERGENCY SERVICES, AND YOU WILL NOT BE ENTITLED TO A REFUND OR CREDIT NOR TO MAKE ANY CLAIM OR COMMENCE ANY ACTION AGAINST BMW IN ACCORDANCE WITH SECTION 12 ABOVE.
The TSP and BMW will not be responsible for the failure to provide BMW Services to you including, but not limited to, where such failure occurs as a result of any of the following: any act or omission of the Underlying Wireless Carrier or any other wireless carrier (including interruption of cellular service), any emergency agency or any other third-party service or product provider; equipment failures or shortages; damage to the TSP’s response centre, any land or wireless communications networks or the GPS system; acts of nature, acts of God, labour strikes, pandemics, epidemics or war; or any other act or event that is outside of the reasonable control of the TSP and BMW. UNDER ANY OF THESE CIRCUMSTANCES, THE TSP OR BMW MAY AT ITS OPTION SUSPEND OR TERMINATE ALL OR SOME OF THE BMW SERVICES, TERMINATE THE SUBSCRIBER AGREEMENT OR THE TERMS OF USE WITHOUT PRIOR NOTICE TO YOU AND WITHOUT ANY LIABILITY WHATSOEVER. MOREOVER, YOU WILL NOT BE ENTITLED TO A REFUND OR CREDIT.
The following parties are considered third party beneficiaries under the Subscriber Agreement and the Terms of Use: BMW’s successors and assigns, parent company, related and affiliated companies, retailers, TSP, and Underlying Wireless Carrier and their respective officers, directors, employees, agents, together with any of their respective assigns and successors; and third party service and product providers involved in delivering the Services. The disclaimer of warranty, limitations of liability and other similar provisions extend to these third party beneficiaries. By using the BMW Services, you also agree to be bound by any additional terms and conditions that may be imposed by any such third party beneficiaries in respect of the provision of any goods or services (for example, the end user terms covering location data). A copy of any additional terms and conditions can be obtained upon request at customer.service@bmw.ca.
Your motorcycle’s limited warranty only covers the Telematics Control Unit installed in your motorcycle as original equipment, and does not cover the BMW Services or any wireless services. YOUR USE OF THE BMW SERVICES OR ANY WIRELESS SERVICES IS AT YOUR OWN RISK. NEITHER BMW, THE SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER, NOR ANY OTHER THIRD PARTY BENEFICIARY EXERCISE ANY CONTROL OVER OR HAS RESPONSIBILITY WHATSOEVER FOR THE CONTENT OR INFORMATION TRANSMITTED OR ACCESSIBLE THROUGH THE BMW SERVICES. EXCEPT FOR THE MOTORCYCLE’S LIMITED WARRANTY FROM BMW OR AS OTHERWISE REQUIRED BY LAW, NEITHER THE TSP, BMW, THE UNDERLYING WIRELESS CARRIER, NOR ANY THIRD PARTY BENEFICIARY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, DATA ACCURACY, AVAILABILITY OF THE BMW SERVICES AND/OR QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE BMW SERVICES (INCLUDING ANY CONTENT OR OTHER INFORMATION OR MATERIAL DELIVERED TO YOU AS PART OF THE SERVICES), THE WIRELESS SERVICE OR THE TELEMATICS CONTROL UNIT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE UNDERLYING WIRELESS CARRIER'S WIRELESS SERVICE ARE EXPRESSLY DISCLAIMED. NEITHER BMW, THE SERVICE PROVIDERS, CARRIER, NOR ANY OTHER THIRD PARTY BENEFICIARY REPRESENT OR WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, BE UNINTERRUPTED, SECURE, ERROR FREE, WITHOUT LOSS OF CONTENT, DATA OR INFORMATION. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT TRANSMISSIONS RELATED TO THE SERVICES AND/OR OVER THE WIRELESS SERVICE MAY NOT BE SECURE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY DATA, MATERIAL OR INFORMATION OF ANY KIND WHATSOEVER UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE BMW SERVICES AND THE WIRELESS SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU SHALL BE SOLELY RESPONSIBLE FOR ANY LOSS OF SUCH DATA, MATERIAL OR INFORMATION DURING, OR THAT RESULTS FROM, YOUR USE OF THE SERVICES AND/OR WIRELESS SERVICE INCLUDING, BUT NOT LIMITED TO, YOUR SENDING OR RECEIVING, OR UPLOADING OR DOWNLOADING, OR ATTEMPTS TO DO SAME, OF SUCH DATA, MATERIAL OR INFORMATION. NEITHER BMW, THE SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER, NOR ANY OTHER THIRD PARTY BENEFICIARY SHALL BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING AS A RESULT OF THE UNAVAILABILITY OF THE BMW SERVICES OR THE WIRELESS SERVICE, INCLUDING THE INABILITY TO REACH 911 OR OTHER EMERGENCY SERVICES OR ANY FAILURE OR FAULT RELATING TO EQUIPMENT OR SERVICES PROVIDED TO YOU.
(a) The BMW Services are provided to you merely as a convenience and are not intended as a substitute for insurance, proper maintenance of your motorcycle in accordance with the manufacturer’s specifications or taking adequate personal safety precautions. The amount of fees for BMW Services are not related to the value of your motorcycle or its contents nor to the potential cost of any injury or loss that may be suffered by you or anyone else while you use or operate the motorcycle in any manner. You are solely responsible for obtaining and maintaining adequate insurance covering such injuries and losses, maintaining the motorcycles as recommended by the manufacturer and taking reasonable personal safety precautions. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO RELEASE BMW AND EACH THIRD PARTY BENEFICIARY FROM ALL CLAIMS, LIABILITIES AND LOSSES, HOWEVER ARISING, WHETHER IN CONTRACT, TORT UNDER STATUTE OR OTHERWISE IN CONNECTION WITH THE BMW SERVICES, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM THE TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF THE BMW SERVICES, EVEN IF CAUSED BY THE NEGLIGENCE OF BMW, THE TSP, OR ANY THIRD PARTY SERVICE PROVIDER OR THE MALFUNCTION OF THE TELEMATICS CONTROL UNIT. YOU AGREE TO INDEMNIFY BMW AND EACH THIRD PARTY BENEFICIARY AGAINST ALL SUCH CLAIMS, LIABILITIES AND LOSSES, HOWEVER ARISING, WHETHER IN CONTRACT, TORT UNDER STATUTE OR OTHERWISE BROUGHT BY THIRD PARTIES. YOU FURTHER AGREE THAT THIS RELEASE EXTENDS TO ANY PARTY CLAIMING UNDER YOU AND THAT NO INSURANCE COMPANY WILL HAVE ANY RIGHT OF SUBROGATION. YOU ALSO AGREE TO INDEMNIFY BMW AND ITS SERVICE PROVIDERS AGAINST ALL CLAIMS, LIABILITIES AND LOSSES RELATED TO OR CAUSED IN WHOLE OR IN PART BY YOUR FAILURE TO NOTIFY US IF YOU CHANGE YOUR PHONE NUMBER, OR SELL THE MOTORCYCLE AND FAIL TO TERMINATE YOUR ACCOUNT OR CANCEL YOUR SERVICE INCLUDING BUT NOT LIMITED TO ALL CLAIMS, EXPENSES, AND DAMAGES RELATED TO OR ARISING UNDER CANADIAN LAW. TO THE EXTENT PERMITTED BY LAW, YOU WILL NOT AGREE TO ACT AS A REPRESENTATIVE, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR PARTICIPATE AS A MEMBER OF A CLASSS OF CLAIMANTS IN ANY LAWSUIT AGAINST BMW IN ANY COURT, WITH RESPECT TO ANY CLAIMS.
(b) NEITHER BMW NOR ANY THIRD PARTY BENEFICIARY WILL BE LIABLE TO YOU OR ANY OTHER PARTY FOR DAMAGES INCURRED IN CONNECTION WITH THE BMW SERVICES OR THE TELEMATICS CONTROL UNIT INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS), EVEN IF BMW OR THE THIRD PARTY BENEFICIARY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY TO ALL CLAIMS, HOWEVER ARISING, INCLUDING, WITHOUT LIMITATION, CLAIMS IN CONTRACT, TORT, UNDER STATUTE OR OTHERWISE (SUCH AS NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THOSE PARTICULAR LIMITATIONS MAY NOT APPLY TO YOU.
(c) IF BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER, THE TSP OR ANY THIRD PARTY BENEFICIARY IS FOUND LIABLE TO YOU FOR ANY REASON, YOU AGREE THAT THE AGGREGATE LIABILITY OF ALL THESE PARTIES TO YOU FOR ANY CLAIM IS LIMITED TO THE TOTAL AMOUNT PAID BY YOU FOR THE BMW SERVICES DURING THE 12 MONTHS PRECEDING THE DATE YOUR CLAIM AROSE. YOU ACKNOWLEDGE THAT NEITHER BMW NOR ANY THIRD PARTY BENEFICIARY WOULD HAVE AGREED TO PROVIDE THE BMW SERVICES TO YOU IF YOU DID NOT AGREE TO THIS LIMITATION. THIS AMOUNT IS THE FULL AND FINAL EXTENT OF THE LIABILITY OF BMW AND THE THIRD PARTY BENEFICIARIES TO YOU. EXCEPT WHERE PROHIBITED BY LAW, YOU MAY NOT BRING ANY CLAIM AGAINST BMW OR ANY THIRD PARTY BENEFICIARY MORE THAN ONE YEAR AFTER THE CLAIM ARISES.
This section shall survive any termination or expiration of the Subscriber Agreement or any other agreement with BMW or in which BMW is a beneficiary thereof relating to the Services.
The BMW Services may employ wireless networks that use radio channels to transmit voice, video and data. Therefore, neither the privacy nor security of conversations or data over the wireless telephone networks can be guaranteed. The limitations of liability described in section 18 of the Terms of Use equally apply to claims arising from or relating to matters of privacy or confidentiality.
By entering the Subscriber Agreement and pursuant to the Terms of Use, you agree to receive electronic communications from or on behalf of BMW and its service providers and partners. BMW, its service providers and partners may contact you by voice call at the telephone number(s) that you provide (including through the use of an automatic telephone dialing system or a prerecorded voice) and by email or other electronic means regarding (i) matters related to your BMW Services and your BMW Services Account and (ii) offers and promotions by BMW and its partners and service providers, including offers and promotions regarding other BMW vehicles, services, products and accessories. BMW may contact you by voice call or by email though through its TSP or other authorized service providers. You agree to notify BMW promptly if your telephone number(s) or email change(s). You may opt-out from promotional electronic and other communications at any time by contacting BMW Customer Service at 50 Ultimate Drive, Richmond Hill, ON L4S 0C8, or by telephone at 1-800-567-2691, by emailing us at customer.service@bmw.ca, or by following the unsubscribe instructions found in electronic mail communications from BMW. Please note that BMW is not able to process opt-out requests for offers and promotions from third parties including service providers and partners. You must contact the third party service provider or partner directly to opt-out of such communications. You will continue to receive electronic communications relating to the BMW Services and your BMW Services Account.
Notices must be given in writing unless the receiving party expressly permits verbal notice. Notices to you will be deemed given to you if deposited in the mail, postage prepaid, addressed to you at the last known address as shown on the records of the TSP. Notices to BMW shall be deemed given when received at 50 Ultimate Drive, Richmond Hill, ON, L4S 0C8, Attn.: Legal Department. You acknowledge and agree that BMW may assign our rights and duties under the Subscription Agreement and the Terms of Use, in whole or in part without notifying you, and without such assignment being considered a change to these Terms of Use. These Terms of Use constitute the entire agreement between you and BMW and governs your use of the BMW Services, superseding any prior agreements with respect to the same subject matter between you and BMW. You also may be subject to additional terms and conditions that may apply when you use third party services. If any portion of these Terms of Use is held to be invalid or unenforceable by any court, the balance of the Terms of Use will continue to be valid and enforceable. If BMW does not exercise or enforce any legal right or remedy contained in these Terms of Use (or which BMW has the benefit of under any applicable law), this will not be taken to be a formal waiver of BMW's rights and that those rights or remedies will still be available to BMW. The Terms of Use are governed by and construed in all respects in accordance with the laws of the Province of Ontario, without reference to any conflict of law principles, and you hereby submit to the exclusive jurisdiction of the Ontario courts. The Terms of Use, including disclaimer of warranties and limitations of liability, will be enforceable against your heirs, administrators, personal representatives, successors and assigns. You agree that by accepting the Terms of Use, you are waiving the right to trial by jury and the ability to participate in a class action unless restricted by law.
If, for whatever reason, you do not wish to receive the BMW Services as paid for by BMW, please contact BMW, your BMW retailer or BMW Motorrad Assist Call Centre at 1-800-493-4070. Declining the Services does not entitle you to any credit from BMW. Should you want to resume the Services at a future date, you will be solely responsible for the cost of such Services.
YOU ARE SOLELY RESPONSIBLE FOR ANY USE OF BMW SERVICES, EVEN IF YOU ARE NOT THE INDIVIDUAL OPERATING THE MOTORCYCLE (INCLUDING USE BY UNAUTHORIZED INDIVIDUALS). YOU ARE SOLELY RESPONSIBLE FOR THE SERVICES REQUESTED BY YOU, OR BY ANYONE USING OR OCCUPYING YOUR MOTORCYCLE, THROUGH BMW SERVICES. You promise and agree to inform and educate all riders, passengers and other users of your motorcycle, as well as any potential future purchaser or lessor of your vehicle, about the BMW Services, features and limitations, and TSP, BMW and service providers’ collection and use of information as permitted by the Subscriber Agreement and the Terms of Use. You represent and warrant that you and anyone using the BMW Services is at least 13 years of age. TSP and BMW have no obligation to inquire about the authority of anyone using your vehicle or the Services. If you, another rider/passenger or other user of your vehicle uses the BMW Services to commit a crime or for another improper purpose or if such other rider/passenger of your motorcycle disputes TSP and/or BMW’s collection and use of information as permitted in the Subscriber Agreement and the Terms of Use, you agree to indemnify, defend and hold TSP, BMW and its service providers s harmless from and against any and all claims, costs, expenses (including legal fees), losses, damages and other liabilities which arise from such improper use in accordance with section 18 above.
BMW and its service providers collect, use, and share information from and about you and your motorcycle. The BMW Motorrad Assist Privacy Policy describes what BMW does with that information. If you sell, transfer, lease or dispose of your motorcycle or your connected device, you are solely responsible for deleting information about you contained in the motorcycle or connected device, or your related account. For important privacy information about the collection and use of personal information when using BMW Motorrad Assist, refer to the Privacy Policy located at www.bmw-motorrad.ca, which is incorporated by reference into the Terms of Use.
(a) You agree that in conjunction with the provision of the BMW Services, BMW or the TSP may create an electronic or other record containing information collected about you and/or passengers of your motorcycle which may include, but is not limited to: contact information (name, address, telephone number), billing information, motorcycle's description (make, model, year, registration); motorcycle use such as location, direction of travel, service data such as, diagnostic trouble codes, motorcycle status information, tire pressure, fuel and odometer readings, battery voltage; incident data and recordings (audio, video or photographs), such as information about collisions, the direction from which your motorcycle was hit information about anyone making a BMW Services call from your motorcycle or under your account; and the date, time and duration of the call, information and recommendations provided to you during the call and any BMW Motorrad Assist response specialist notes written during a call. You agree that these records, your personal information provided, and your account information may be retained by the TSP, BMW and its affiliates and, to the extent necessary, furnished to the emergency contacts you have designated, and to third party service providers (e.g. emergency responders and roadside assistance providers). You consent to the collection, use and disclosure by the TSP, BMW, the Underlying Wireless Carrier and any third party service providers of these records, your personal information and your account information for the purposes of (i) providing current and new BMW Services, (ii) collecting information about your motorcycle system status and to identify if system or software updates are available and to remotely deliver and install the updates and for other matters relating to you motorcycle, (iii) communicating with you about the Services and for other matters relating to your motorcycle, (iv) billing, collecting fees and administering your account and for other matters relating to your motorcycle, (v) planning, developing, evaluating and marketing new or existing BMW Services and for other matters relating to your motorcycle, (vi) preparing aggregate statistical data that does not disclose specific data about a particular BMW customer or individual, (vii) to prevent and detect fraud or misuse of the Services, and (viii) as required by law. You agree that it is necessary to retain information collected and used for the foregoing purposes throughout the duration of the Subscriber Agreement.
(b) You consent to being contacted in your motorcycle to enable BMW through its TSP to deliver the BMW Services to you for the duration of the Subscriber Agreement. You also consent to the use of the BMW Services to locate your BMW motorcycle should it be necessary for the provision of the Services or, to ascertain the identity of the person in control of the motorcycle or for purposes of law enforcement throughout the duration of the Subscriber Agreement.
(c) You agree to allow the TSP to monitor and record conversations between the TSP’s response centre specialists and your motorcycle’s occupants and to store these recorded conversations to be used for purposes of quality assurance, employee training, and compliance with the law. Additionally, if your motorcycle is equipped to provide stolen motorcycle recovery, and your motorcycle is stolen, you must provide a valid stolen motorcycle police report number. The TSP may then attempt to determine the location of the motorcycle, without the passengers’ knowledge, in order to allow BMW Services to assist the authorities in recovering the motorcycle. YOU CONSENT, ON BEHALF OF YOURSELF, PASSENGERS OF YOUR MOTORCYCLE, AND ANYONE ENGAGED IN A CONVERSATION WITH A SERVICE PROVIDER, TO SUCH MONITORING AND RECORDING AND YOU RELEASE THE TSP, BMW AND THIRD PARTY SERVICE PROVIDERS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES AND LOSSES THAT MAY RESULT FROM ANY SUCH MONITORED AND/OR RECORDED CONVERSATIONS. For the avoidance of doubt, the provisions of section 18 of the Terms of Use apply equally to matters addressed in this section.
(d) YOU CONSENT ON BEHALF OF YOU, ALL RIDERS OF AND PASSENGERS IN YOUR MOTORCYCLE TO THE COLLECTION, USE AND DISCLOSURE OF PERSONAL AND MOTORCYCLE INFORMATION AS DESCRIBED IN THE BMW PRIVACY POLICY. You can obtain a copy of the BMW Privacy Policy by contacting BMW at privacy@bmw.ca or by calling 1-800-567-2691.
(e) The TSP, BMW or the Underlying Wireless Carrier may be legally compelled to provide location data and other information obtained through the BMW Services system to law enforcement agencies. You release the TSP, BMW, the Underlying Wireless Carrier and any other third-party service providers from any claim or liability based upon disclosure of information under those circumstances.
(f) You consent, on behalf of yourself, and all riders of and passengers in your motorcycle, that BMW may transfer all personal information collected, used or disclosed in accordance with the Subscriber Agreement and the Terms of Use to a successor in the event of a corporate reorganization by BMW.
(g) You consent, on behalf of yourself and all riders of and riders/passengers in your motorcycle, that TSP and\or BMW may provide location data and other related information obtained through the BMW Services system, without your or a rider or passenger knowledge, to third party insurers in cases of suspected fraud, or in situations where the subscriber or the rider of the motorcycle is not deemed to be reasonable or is uncooperative with BMW, law enforcement, or insurers if motorcycles financed by BMW are stolen or suspected stolen.
You shall comply with all laws and regulations applicable to the BMW Services and your use of the BMW Services. You may not use, export, re-export, import, sell or transfer any aspect of the BMW Services except as authorized by Canadian law and any other applicable laws and regulations. You also agree that you will not use the Services for any purposes prohibited by Canadian law, including the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The BMW Services and software are protected by Canadian and international copyright laws and may be subject to other intellectual property protections, including patent and trademark rights. You may not copy, distribute, modify, perform, broadcast, display, transmit, reuse, re-post, use (except as expressly set out herein) or claim any right in any aspect of the BMW Services or software, including the content, text, images, audio, and video without BMW's express, prior written permission.
BMW may suspend, cancel or terminate Services or the BMW Motorrad Assist contract as a whole in the event of the customer being or becoming subject to sanctions (any applicable restrictive measures (trade, military, economic or financial sanctions, laws, or embargoes) including lists of specially designated nationals or blocked persons lists mandated, imposed or adopted by the relevant authorities (in particular the United Nations Security Council, the European Union, Her Majesty's Treasury). Such right can only be exercised if BMW is no longer permitted to provide the respective Services to the customer or is no longer permitted to continue the BMW Motorrad Assist contract with the customer. To the extent the respective Services have already been paid for by the customer, the customer is entitled to claim an adequate refund regarding the unused/cancelled Service provided that BMW has received the approval to do so from the competent authority (to the extent required under the applicable sanctions).
The BMW Motorrad Assist contract shall be concluded for an indefinite duration. The customer may terminate the BMW Motorrad Assist contract at any time with a one-month notice period. In this case, all Services will end with the BMW Motorrad Assist contract. BMW can ordinarily terminate the BMW Motorrad Assist contract with a one-month notice period at the earliest 5 (five) years after its commencement. In case of an ordinary termination, the BMW Motorrad Assist contract remains in force and effect for any ongoing Service with limited duration until the term of the respective Service has lapsed and/or for any Service with an indefinite duration until such can be terminated ordinarily.