Updated Terms and Conditions
Last modified: 03/06/2020
The BMWGroupDirect.com website (the "Site") is provided by BMWFinancial Services NA, LLC ("BMW FS") through its third-party serviceprovider, RMS Automotive, LLC ("RMS Automotive"). These Terms of Usewill govern your use of the Site and any Vehicle purchase or other transactionthat may take place on or through the Site. As used in these Terms of Use,"you" or "your" refers to you as a user of the Site andyour Dealership (as defined below), and "buyer" refers to you and anyother purchaser of a vehicle listed on the Site (each, a "Vehicle").
By clicking your acceptance of these Terms of Use when registering or logginginto your account on the Site, or by otherwise using or accessing the Site, youare (i) certifying to BMW FS and RMS Automotive that you are an authorizedrepresentative of your dealership ("Dealership"), and that theauthorizations and agreements below are being made in your representativecapacity for and on behalf of your Dealership; (ii) agreeing that you and your Dealershipwill be bound by these Terms of Use; and (iii) agreeing that you have reviewedand understand the BMWGroupDirect.com Privacy Statement. These Terms of Use arelegally binding, with the same legal effect as a signed, written agreemententered into with BMW FS and RMS Automotive.
1. Vehicle Purchases. Each Vehiclelisted on the Site is owned and being offered for sale by BMW FS (either forits own account, or as service to Financial Services Vehicle Trust, or for theaccount of a BMW FS affiliate). Vehicles being sold in a "Buy it Now"format will be sold to the buyer at the price listed on the Site. Vehiclesbeing sold in an auction (bidding environment) will be sold to the highestbidder, unless the Vehicle’s designated reserve price has not been met, inwhich case BMW FS reserves the right to end the auction and either relist theVehicle or remove it from the Site entirely. By clicking on the "Buy"or "Bid" or any similar button in any Vehicle listing, you arecommitting to purchase the listed Vehicle at the designated price in accordancewith these Terms of Use. All purchases are final and any issues or disputesinvolving a Vehicle purchased on the Site will be resolved exclusively throughthe BMW FS arbitration process described below. BMW FS and RMS Automotivereserve the right to void or cancel any Vehicle purchase or other transactionthat may take place on or through the Site.
2. DealerAccount. Once you have registered your account on the Site, you will beissued a unique username and password which you will use to access the Site.RMS Automotive participates in the AuctionACCESS® registration system, and theAuctionACCESS number and other registration information assigned to yourDealership during the AuctionACCESS registration process will be linked to theDealership’s account and used for purchases made by the Dealership and itsusers on the Site. You are responsible for protecting your username andpassword and your Dealership is fully responsible for all purchases and otheractivities that are made or initiated using your account or your username andpassword (including, without limitation, any purchases or other activities madeor initiated by any person that is designated as an "AuthorizedRepresentative" or "Authorized User" of the Dealership in theAuctionACCESS system). The Dealership unconditionally guarantees all purchasesand other transactions may or initiated using any Dealership account on theSite.
3. Accuracyof Information. You certify that all registration and representativeinformation you have provided to us, via AuctionACCESS and otherwise, is true,correct, and complete. You agree to promptly update your informationvia AuctionACCESS if there is any change to the information you have provided.
4. ProxyBidding. The Site may allow you to place automatic proxy bids, which allowsyou to specify in advance your "Max Bid" for a particular Vehicle. Ifyou place a proxy bid on the Site, the system will automatically bid on theapplicable Vehicle for you in the bidding increments indicated on the listing,up to your specified "Max Bid". You may also have the ability toplace a "Match Reserve" proxy bid for a particular Vehicle where thesystem will automatically increase your final bid to match the designatedreserve price for the Vehicle if you are the highest bidder, the reserve pricehas not been met and your Max Bid is higher than the reserve price. Proxy bidsare confidential and will not be known to other bidders or to BMW FS. Sometimesthere may be multiple bids for a Vehicle in the same amount. In these cases,priority is given to the highest bid that is placed first, either by regularbid or by proxy bid.
5. VehicleCondition and History Reports. Vehicles listed on the Site may have beenassigned an AutoGrade Condition Score based on the overall condition of the Vehicleand may also include an AutoCheck and/or Carfax vehicle history report("VHR"). AutoGrade Condition Scores, and VHRs are issued and providedby third parties. BMW FS and RMS automotive make no representation, warranty orguaranty of any kind or nature regarding the accuracy or completeness of any AutoGradecondition score or VHR. Once you have purchased a vehicle, it is yourresponsibility to inspect the vehicle and ensure that any missing equipment,undisclosed damage or other issues are acknowledged in writing immediately,before you take possession of the vehicle. BMW FS may not announce everyvehicle as having been part of a National Highway Traffic and SafetyAdministration but makes every effort to repair such vehicles prior to listingthem for sale on the Site. All buyers have a responsibility to confirm any DMVfees currently due prior to bidding as BMW FS will not cover outstanding feesowed.
6. VehicleArbitration. Any issues or disputes involving a Vehicle purchased on theSite will be resolved exclusively through the arbitration process establishedand administered by BMW FS (with the assistance and support of RMS Automotive).The NAAA Arbitration Policy is used by BMW FS as a general guideline forvehicle arbitrations, but BMW FS reserves the right to establish its ownarbitration process and policies and to make all arbitration decisions, whichshall be final. No vehicle exceeding 100 miles from thetime of purchase can be arbitrated.
7. Payments.Payment for each Vehicle you purchase is due on the date of sale in good fundsand must include all applicable fees and other charges displayed on the Vehiclelisting page or on the purchase confirmation from us, as applicable. Payments must be made to RMS Automotive or itsdesignated payment facilitator either directly by the registered buyer orthrough a pre-established direct floor planner acting on such buyer’sbehalf. Although we reserve the right to make exceptions on acase-by-case basis, we generally will not accept other third-party payments. If payment is not received by 12:01am on day sixof aging, a late fee may be assessed. Wemay charge a late fee equal to 2% of any amount you owe that we do not receivein full, on time, and otherwise in accordance with these Terms of Use, providedthat no late fee will be less than $30 or more than $300. Aging begins on the latest date of the following andis considered day one: 1) sale date, 2) title received date, or 3) arbitrationresolution date. Aging calculations are based on calendar days. Ourright to charge a late fee is in addition to, and not in limitation of, anyother rights we or our affiliates may have. Payments must be made by ACH, bywire transfer, or by using an approved floor plan line of credit withsufficient availability to cover the full payment amount. You agreethat, if any electronic debit or check/draft we (or our designated paymentfacilitator) present on your bank account is returned unpaid, we may debit youraccount for a returned item fee in the maximum amount permitted underapplicable state law and any payments association rules that govern thetransaction. Any returned item fee we impose is in addition to any late fee youincur and any returned item fee your Dealership’s bank mayimpose. We reserve the right to suspend your account or buyingprivileges on the Site in the event of any returned or rejected payment orelectronic debit request, or otherwise in our discretion. We reserve the rightto change the forms and types of payments we accept in our sole discretion.Buyers making payment via a floor plan line of credit that requires manualprocessing may also be charged an administrative fee of up to $50 per Vehicleas compensation to RMS Automotive for costs it incurs in processing suchpayments.
8. ElectronicPayment Authorization. If you have elected to pay for Vehiclesyou purchase on the Site by automated electronic transfer from yourDealership’s bank account, RMS Automotive (or its designated paymentfacilitator) will attempt to debit the amounts owed for each Vehicle from thedesignated bank account in accordance with such authorization and these Termsof Use. Additionally, you agree that, if you designate a bank account forpayment of amounts you owe us, including, but not limited to, by adding a bankaccount to your online profile, we may use such account information to initiateelectronic debit entries to your bank account, including debit entries foramounts you owe us from time to time as such amounts become due, credit entriesfor amounts we owe you, and debit or credit entries in any amount necessary tocorrect an error. You understand that, other than account information weroutinely make available to you online, we will not provide any notice to youprior to initiating entries and that you are responsible for ensuring that youraccount balance is sufficient to cover debits for amounts you owe us. You agreethat any authorizations we initiate to your bank account must comply withapplicable law and applicable payments association rules, including the NACHAOperating Rules. This authorization is in addition to, and does not terminateor alter, any other authorization for electronic payments that we have on fileor that you provide us in the future.
9. Transferof Title. Title to a Vehicle will only pass to the buyer onceRMS Automotive (or its designated payment facilitator) has received payment infull, in good funds, and otherwise in accordance with these Terms ofUse. We retain a security interest in each such Vehicle in theinterim to secure payment.
10. Electronic DealingApproval. You hereby acknowledge and agree that your use of the Siterequires you and us to transact business with each otherelectronically. You further acknowledge and agree that you areconsenting to these Terms of Use both in your individual capacity and in yourcapacity as an authorized representative for Dealership and that your consentto this document shall be deemed to satisfy all requirements imposed onelectronic or digital signatures or consents under applicable federal,provincial, and state law, including, as applicable, the Electronic Signaturesin Global and National Commerce Act (the “E-Sign Act”), 15 U.S.C. § 7001(a) etseq., the Ontario Electronic Commerce Act, 2000 SO c. 17, state or provincialelectronic transactions or commerce laws, and any other similar laws relatingto the validity or enforceability of electronic or digital signatures orconsents.
11. Electronic Signatures. Youacknowledge and agree that you and we may, from time to time, find it expedientto use electronic signature(s), acknowledgement(s), consent(s),“click-through(s)”, or other approval(s), direct or indirect, for access toauctions, bills of sale, receipts, titles, and other documents or disclosuresnecessary or incidental to the transaction of business on the Site, whetheronline, in emails, or otherwise, which makes your business with us easier,faster, or more efficient. To that end, you agree that any such forms ofapproval from you shall be effective and binding upon you, in the same manneras a handwritten signature, where circumstances indicate your intent to bebound and/or we choose to rely on such approval(s). You further acknowledge andagree that we may affix to any printed or electronic copy of such documents,including these Terms of Use, your electronic or digital signature in the formwe choose, which shall for all purposes also be deemed your valid signature andacceptance. Regardless of whether your advance consent or approval was given,or in what form, you agree that you will be deemed to have ratified anytransaction with or through us that you do not dispute in writing within 24hours of confirmation by us.
12. VehicleTransportation; Risk of Loss. You are responsible for thetransportation of any Vehicle purchased on the Site. Vehicles must be picked upby the Dealership or its designated transport agent or other representative byno later than the fifth (5th) day following the date of sale (the "VehiclePick Up Deadline"). If a Vehicle is not picked up by such date, RMSAutomotive reserves the right to (a) cancel the transaction; (b) arrange forthe transport and delivery of the Vehicle using a carrier of RMS Automotive’schoosing (at the Dealership’s expense); (c) suspend your account or buyingprivileges on the Site; and/or (d) assess the Dealership a daily storage feefor the Vehicle, not to exceed $25.00 per day. Responsibility and risk of lossfor a Vehicle will pass to the buyer at the earlier of (i) such time as thebuyer or its transport agent or other representative takes possession orcontrol of the Vehicle, or (ii) the Vehicle Pick Up Deadline. The buyer and itstransport agent are responsible and liable for any damages and otherliabilities that may arise during or in connection with the transport ordelivery of a Vehicle (“Transportation Claim”), regardless of whether RMSAutomotive may have provided assistance or support in arranging for the transportor delivery of the Vehicle. You acknowledge and agree that your onlyrecourse or remedy for Transportation Claims, if any, shall be to and againstthe third-party carrier, its insurer, your own insurer, or the third-party thatcaused the alleged damage, and not to, against, or involving us. Youmust present your gate release documentation when picking up your Vehicle.
13. Off-Site Vehicles. Forany vehicle(s) physically located away from an auction facility when auctionedonline, the buyer must present to the off-site location, or other storagefacility, the proper gate release documentation issued by BMW FS and/or RMSAutomotive (e.g., the bill of sale). It is the responsibility of theoff-site location or storage facility, acting as agent for BMW FS, to verifythe authenticity of the buyer’s gate release documentation before releasing theVehicle(s) by comparing it to the gate release documentation provided directlyto the off-site dealership by BMW FS and/or RMS Automotive.
14. Buyer/DealershipAcknowledgments. You acknowledge and agree that RMS Automotive is merelyperforming a service on behalf of BMW FS, and that RMS Automotive makes norepresentation, warranty or guaranty or any kind or nature with respect to anyVehicle (including any odometer reading or any related odometer statement orcertification) or any transaction that takes place on or through the Site, orregarding the availability or functionality of the Site (and all suchrepresentations, warranties and guaranties are expressly disclaimed by RMSAutomotive). You further acknowledge and agree that BMW FS and RMS Automotiveretain the right to cease doing business with you (or any of your agents orrepresentatives) or with any other dealer at any time and for any reason, andmay discontinue the Site or your ability to purchase Vehicles or continuingusing the Site at any time and for any reason. By purchasing a Vehicle on theSite, you are certifying to BMW FS and RMS Automotive that the Vehicle is beingpurchased for resale in the ordinary course of your business, and that you holdall necessary federal, state and provincial, as applicable, sales tax exemptioncertificates and similar documents required by the governing laws of yourjurisdiction.
15. Indemnification;Limitations of Liability. You agree to indemnify and hold harmless BMW FS,RMS Automotive and their respective affiliates and the shareholders, members,directors, officers, employees and representatives of each of the foregoing,from and against any and all claims, judgments, damages, penalties, losses,expenses (including reasonable legal fees) and other liabilities that arise outof or relate to (a) your use of the Site; (b) any Vehicle purchase or othertransaction that you may initiate or be involved with on the Site; (c) any useor subsequent sale of a Vehicle that you have purchased on the Site after youor your transport agent or other representative has taken possession of theVehicle; or (d) your breach or violation of any of these Terms of Use. UNDER NOCIRCUMSTANCES WILL BMW FS OR RMS AUTOMOTIVE BE LIABLE TO YOU OR ANY OTHERPERSON FOR ANY DAMAGES OR OTHER LOSSES ARISING OUT OF YOUR USE OF OR RELIANCEON THE SITE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SITE.
16. Updates andModifications. We may update or modify these Terms of Use from time to timeby posting an updated or modified version of the Terms of Use to the Site. Itis your responsibility to regularly check and monitor the Site for any updatesor modifications to the Terms of Use. By continuing to use or access the Sitefollowing the posting of any updates or modifications to the Terms of Use, youagree to be bound by such updates or modifications.
17. Prohibited Uses. Youmay use the Site for only lawful purposes and in accordance with these Terms ofUse. You agree not to (a) use the Site in any manner that could disable,overburden, damage, or impair the Site, or interfere with any other party’s useof the Site, including their ability to engage in real time activities throughthe Site; (b) use any automated means or process (including any robot, spideror other automatic device) to monitor, copy, collect or index any informationcontained on the Site and/or to interact with the Site’s functionality for anypurpose, including, but not limited to, bidding, buying, or setting upaccounts; (c) use any device, software or routine that interferes with theproper working of the Site; (d) use the Site to gather email addresses forpurposes of spamming; (e) introduce any viruses, trojan horses, worms, logicbombs or other material which is malicious or technologically harmful; (f)attempt to gain unauthorized access to, interfere with, damage or disrupt anyparts of the Site, the server on which the Site is stored, or any server,computer or database connected to the Site; (g) attack the Site via adenial-of-service attack or a distributed denial-of-service attack; or (h)otherwise attempt to interfere with the proper working of the Site. We reservethe right to deny access to the Site, or any service or feature providedthereunder to anyone who violates these Terms of Use or who, in our judgment,interferes with the ability of others to enjoy the Site, or infringes therights of others, or otherwise.
18. Miscellaneous.These Terms of Use will be governed and construed in accordance with theinternal laws of the State of Georgia. Any dispute that you may have againstRMS Automotive, BMW FS or any of their respective affiliates arising from youruse of the Site or any transaction that may take place on or through the Site,shall be subject to the exclusive jurisdiction of the federal and state courtslocated in Fulton County, Georgia. BMW FS and RMS Automotive are directbeneficiaries of these Terms of Use and shall have the right to enforce theseTerms of Use either independently or collectively. These Terms of Use, togetherwith the BMWGroupDirect.com Privacy Statement, represent the entire agreementbetween you and BMW FS and RMS Automotive regarding the subject matterhereof.
