[lemetier]

Originally Posted by sgcrockett1

Obviously some people use these services more than others. I am what is known as a senior citizen, a retired lawyer, and I still have the need to periodically travel around L A at night. I have relied on Driver Assist on many of these occasions. I do not believe litigation is the answer but if someone is seriously injured I can foresee the likelihood. I have not reviewed the documents to see if binding arbitration is required. There have been many multi-million dollar awards from arbitration. This discussion of litigation or arbitration is not what will solve the problem. BMW should offer a workaround for its customers to assess whether that route should be followed. I went to the Palm Springs BMW dealer and the Sales Manager did not even know about this issue. That was yesterday. BMW is simply not taking this issue seriously.

When I push the SOS button I get a connection to a 911 operator, not a third party that decides whether to connect me to a 911 operator.

A voice of reason.

Do you have a Bluetooth or USB connection to your mobile phone established when you press the button? If the TCU doesn't have a connection to the network itself but an external device is connected and has a signal, the Automatic Crash Notification and SOS button will initiate an emergency call through the device to a PSAP. This is not the same as BMW Assist, and is one interim safety solution some are crying foul over. The car has to have the proper Smartphone integration hardware, so not all vehicles are supported.

I acknowledge and understand that some use the service more than others. Frankly, you're exactly the demographic who's perspective is the most interesting to me. I've seen more money spent on defending frivolous suits in the Automotive industry than the lifetime earnings of every member of this forum combined. There are other service providers for the convenience aspects and I'd be happy to provide some to you. Hearing a legal professional agree litigation isn't a solution is quite nice for a change. Having lived in Rancho Mirage and commuting to Encino 7 days a week, know how desolate it is out there. For your navigation, RTTI comes in through satellite via TCU and/or Satellite Radio.

As to the contractual terms, the most relevant are below. The precedent over this type of situation has long been established. Back in 2002, Volkswagen/Audi partnered with OnStar to provide a telematics and communication service for the 2004 A8 and subsequently other models. This used an internal analog connection box with an optional GM Proprietary Motorola V60 Phone with Verizon Service. Just as the first cars were to arrive, FCC allowed the sun setting of analog networks, VW and GM severed ties, and anyone with the system were stuck, as one couldn't supplement the the internal or separate V60 with their own device. If the situation here was similar, I wouldn't blink at the notion of litigation.

10. Responsibility in Emergency Situations. When our service provider receives an emergency signal from your vehicle, our service provider will attempt to determine if an emergency exists. If so deemed, the service provider will attempt to contact you and the appropriate public safety access point (PSAP) to request assistance and may also attempt to call one of your third party emergency contacts. Neither BMW nor its service provider guarantee that the service provider will actually receive an emergency signal or call from your vehicle or that the service provider will successfully contact the appropriate emergency agency or your third party emergency contacts if it does receive an emergency signal or call, or that emergency personnel will respond to the call or locate your vehicle. Neither BMW, its service provider nor the Underlying Wireless Carrier is responsible for any failure or delay of a PSAP in responding to an emergency or for the quality of service delivered, whether the failure is the fault of BMW, the service provider, the Underlying Wireless Carrier or any other third party service provider. You release BMW, the service provider, the Underlying Wireless Carrier and any other third party service providers from all liabilities and losses (including physical injury or death) that you or others may suffer in an emergency situation.

14. Disclaimer of Warranties. Your vehicle's limited warranty includes the BMW Assist Unit in your vehicle, but does not cover the BMW Assist Services or the wireless service. NEITHER BMW, THE SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER, NOR ANY OTHER

THIRD PARTY BENEFICIARY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE BMW ASSIST SERVICES (INCLUDING ANY CONTENT OR OTHER INFORMATION DELIVERED TO YOU AS PART OF THE SERVICES), OR THE UNDERLYING WIRELESS CARRIER'S WIRELESS SERVICE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THE UNDERLYING WIRELESS CARRIER'S WIRELESS SERVICE ARE EXPRESSLY DISCLAIMED.

15. Limitations of Liability.

a. The BMW Assist Services are provided to you merely as a convenience and are not intended as a substitute for insurance. The amount of fees for BMW Assist Services are not related to the value of your vehicle or its contents or to the potential cost of any injury or loss suffered by you or anyone else. You should obtain and maintain adequate insurance covering such injuries and losses. YOU AGREE TO RELEASE BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER AND ALL OTHER THIRD PARTY BENEFICIARIES FROM ANY AND ALL CLAIMS, LIABILITIES AND LOSSES IN CONNECTION WITH THE BMW ASSIST 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 ASSIST SERVICES, EVEN IF CAUSED BY THE NEGLIGENCE OF BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER, ANY THIRD PARTY BENEFICIARY, OR THE MALFUNCTION OF THE BMW ASSIST UNIT. YOU AGREE TO INDEMNIFY BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER, AND ALL OTHER THIRD PARTY BENEFICIARIES AGAINST ALL SUCH CLAIMS, LIABILITIES AND LOSSES 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. b. NEITHER BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER NOR ANY THIRD PARTY BENEFICIARY WILL BE LIABLE TO YOU OR ANY OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) IN CONNECTION WITH THE BMW ASSIST SERVICES OR THE BMW ASSIST UNIT, EVEN IF BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER OR THE OTHER THIRD PARTY BENEFICIARY ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY TO ALL CLAIMS, INCLUDING, WITHOUT LIMITATION, CLAIMS IN CONTRACT AND TORT (SUCH AS NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY). SOME STATES 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 OR ANY OTHER 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 ASSIST SERVICES DURING THE 12 MONTHS PRECEDING THE DATE YOUR CLAIM AROSE. YOU AGREE THAT NEITHER BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER NOR ANY OTHER THIRD PARTY BENEFICIARY WOULD HAVE AGREED TO PROVIDE THE BMW ASSIST SERVICES TO YOU IF YOU DID NOT AGREE TO THIS LIMITATION. THIS AMOUNT IS THE SOLE AND EXCLUSIVE LIABILITY OF BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER AND ANY OTHER THIRD PARTY BENEFICIARIES TO YOU, AND IS PAYABLE AS LIQUIDATED DAMAGES AND NOT AS A PENALTY. IN THE EVENT YOU WISH TO OBTAIN A GREATER AMOUNT ON THIS LIMITATION, YOU HAVE THE OPTION TO PURCHASE SUCH GREATER AMOUNT BY PAYING AN ADDITIONAL MONTHLY AMOUNT AND A RIDER SHALL BE ATTACHED TO THIS AGREEMENT SETTING FORTH THE ADDITIONAL CHARGE AND ADDITIONAL AMOUNT OF THE LIMITATION OF LIABILITY. EXCEPT WHERE PROHIBITED BY LAW, YOU MAY NOT BRING ANY CLAIM AGAINST BMW, ITS SERVICE PROVIDERS, THE UNDERLYING WIRELESS CARRIER OR ANY OTHER THIRD PARTY BENEFICIARY MORE THAN ONE YEAR AFTER THE CLAIM ARISES.

16. Arbitration. IF A CONTROVERSY, DISPUTE, OR CLAIM, WHETHER BASED ON CONTRACT, TORT, STATUTE, OR OTHER LEGAL OR EQUITABLE THEORY (INCLUDING BUT NOT LIMITED TO ANY CLAIM OF FRAUD, MISREPRESENTATION, OR FRAUDULENT INDUCEMENT) ARISING OUT OF OR RELATING TO THIS AGREEMENT, TO ANY BREACH HEREOF, OR TO ANY TORTUOUS, CONDUCT OCCURRING, WHETHER BY ACTION OR INACTION, IN THE PERFORMANCE OF OR FAILURE TO PERFORM ANY OBLIGATION HEREUNDER, YOU AGREE THAT THE MATTER SHALL BE SETTLED BY INDEPENDENT ARBITRATION INVOLVING A NEUTRAL ARBITRATOR AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, AS MODIFIED BY THIS AGREEMENT AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. ARBITRATION IS NOT A COURT PROCEEDING. THE RULES OF ARBITRATION DIFFER FROM THE RULES OF COURT. THERE IS NO JUDGE AND JURY IN AN ARBITRATION PROCEEDING. NO ARBITRATOR HAS AUTHORITY TO AWARD RELIEF IN EXCESS OF WHAT THIS AGREEMENT PROVIDES. IN THE EVENT THE FOREGOING ARBITRATION REQUIREMENTS DO NOT APPLY, YOU WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY AND A JUDGE WILL DECIDE ANY AND ALL DISPUTES. NOTWITHSTANDING THE ABOVE, EITHER PARTY MAY SEEK FROM ANY COURT HAVING JURISDICTION HEREOF, ANY INTERIM, PROVISIONAL OR INJUNCTIVE RELIEF THAT MAY BE NECESSARY TO PROTECT THE RIGHTS OR PROPERTY OF ANY PARTY OR TO MAINTAIN THE STATUS QUO BEFORE, DURING OR AFTER THE PENDENCY OF THE ARBITRATION. THE INSTITUTION AND MAINTENANCE OF ANY JUDICIAL ACTION OR PROCEEDING FOR ANY SUCH INTERIM, PROVISIONAL OR INJUNCTIVE RELIEF SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT OR OBLIGATION OF EITHER PARTY TO SUBMIT THE DISPUTE TO ARBITRATION