Settlement Agreement & Release - Repurchase
03-21-2005, 08:52 AM
#1
Members
Thread Starter
Join Date: Mar 2005
Location: Houston, TX
Posts: 8
Likes: 0
Received 0 Likes
on
0 Posts
My Ride: 2005 BMW 530 (1/05 Production), Nav, Cold Weather Package, Premium Package, Steptronic, Sat Radio, LoJack
Last year I purchased a 2004 BMW e60 with a number of features. On the order, I specifically asked for the Satellite Pre-wire option. ($75). When I received the car, I was advised the car had all of the options that I ordered.
I asked when the Sirus Satellite feature would be available to be added, they advised sometime in the first quarter of 2005. When I brought my 2004 E60 in to be retrofitted with the Sattelite option, I was advised that the car did not include the satellite pre-wire.
I went back to the dealership that I bought the car from and was advised that BMW stopped that option from being made available.
After many discussions with the dealership, I was able negotitate a settlement with the dealership that they would buy my 2004 back and give me a 2005 made to order for $5000 (Same options, including the satellite feature).
I didn't think this was too bad of a deal as I got a BRAND new model year (1/05) considering the satellite feature is $750.
Once I received the car, the dealership came back and asked me to sign a "Settlement Agreement & Release - Repurchase". In my eyes, BMW has acknowledged a problem with the satellite pre-wire option being withdrawn during a certain time period for production.
I have a copy if anyone would like to see it, or I can post the language. It appears that BMW has this program available and is only used when necessary. There is one clause in the agreement as follows that I thought was interesting:
"17. Confidentialty - The parties will keep confidential the existence and terms of this Agreement. The parties also agree not to revewal the facts leading up to, the terms of conditions of this agreement, in any communication form, including, but not limited to, word-of-mouth, print, broadcast or internet."
Since the agreement was presented to me AFTER the deal was made finalized, I did not feel compelled to sign the agreement.
As such, I did NOT sign and return it. After pushing the dealer on this issue, the dealer agreed not to hold me responsible to signing the agreement.
Don't let your dealership or BMW stronghold you for the errors that THEY MADE!
I asked when the Sirus Satellite feature would be available to be added, they advised sometime in the first quarter of 2005. When I brought my 2004 E60 in to be retrofitted with the Sattelite option, I was advised that the car did not include the satellite pre-wire.
I went back to the dealership that I bought the car from and was advised that BMW stopped that option from being made available.
After many discussions with the dealership, I was able negotitate a settlement with the dealership that they would buy my 2004 back and give me a 2005 made to order for $5000 (Same options, including the satellite feature).
I didn't think this was too bad of a deal as I got a BRAND new model year (1/05) considering the satellite feature is $750.
Once I received the car, the dealership came back and asked me to sign a "Settlement Agreement & Release - Repurchase". In my eyes, BMW has acknowledged a problem with the satellite pre-wire option being withdrawn during a certain time period for production.
I have a copy if anyone would like to see it, or I can post the language. It appears that BMW has this program available and is only used when necessary. There is one clause in the agreement as follows that I thought was interesting:
"17. Confidentialty - The parties will keep confidential the existence and terms of this Agreement. The parties also agree not to revewal the facts leading up to, the terms of conditions of this agreement, in any communication form, including, but not limited to, word-of-mouth, print, broadcast or internet."
Since the agreement was presented to me AFTER the deal was made finalized, I did not feel compelled to sign the agreement.
As such, I did NOT sign and return it. After pushing the dealer on this issue, the dealer agreed not to hold me responsible to signing the agreement.
Don't let your dealership or BMW stronghold you for the errors that THEY MADE!
03-21-2005, 12:33 PM
#2
Super Moderator
Join Date: Mar 2004
Location: Pittsburgh, PA USA
Posts: 17,310
Likes: 0
Received 2 Likes
on
2 Posts
My Ride: G30 M550i
Model Year: 2018
Well there you go. I knew they were going to have to do something to make things right for the people who got screwed last year. Thanks for not signing the agreement and posting it here.
I'm sure many members will be happy to get new cars and Sirius!
I'm sure many members will be happy to get new cars and Sirius!
03-21-2005, 05:37 PM
#3
Contributors
Join Date: Oct 2004
Location: White Plains, NY
Posts: 688
Likes: 0
Received 0 Likes
on
0 Posts
My Ride: 2008 550, Carbon Black Metallic, Natural Brown Dakota Leather, Sport Package, Sport Automatic Transmission, Cold Weather Package, Power Rear and Manual Side Sun Shades, etc.
Retired - 2004 545 SMG, Black Sapphire Metallic, Auburn Dakota Leather, Cold Weather and Sports Packages, Power Rear and Manual Side Sun Shades
Can you post the entire agreement? I would love to see it.
03-23-2005, 05:45 AM
#4
Members
Thread Starter
Join Date: Mar 2005
Location: Houston, TX
Posts: 8
Likes: 0
Received 0 Likes
on
0 Posts
My Ride: 2005 BMW 530 (1/05 Production), Nav, Cold Weather Package, Premium Package, Steptronic, Sat Radio, LoJack
SETTLEMENT AGREEMENT AND RELEASE - REPURCHASE
1. Parties. The parties to this Settlement Agreement and Release (the Agreement") are _________________("Customer") and BMW of North America, LLC ("BMW NA"), (Customer and BMW NA collectively referred to herein as the "Parties").
2. Recitals. This agreement is entered into with reference to a dispute arising out of alleged defects and/or nonconformities (the "Dispute" with a _____ BMW _____ bearing Vehicle Identification Number ________________, (the "Vehicle").
3. Affirmative Covenants. In order to compromise and settle all claims between Customer and
BMW NA and in consideration of the premises and the terms and conditions hereinafter set
forth, the Parties hereby covenant as follows:
a) BMW NA will convey to Customer a check in the amount of $________
b) BMW NA will payoff the outstanding loan/lease with in the amount of $_________
c) Concurrent with the execution of this Agreement, Customer will convey the Vehicle to
BMW NA and will execute any and all documents necessary to transfer all of rights, title
and interest in the Vehicle to BMW NA. Customer agrees to satisfy any outstanding lien
or encumbrances on the Vehicle, other than the payoff listed in (b) above, prior to
conveying title to BMW NA.
d) Customer warrants that the Vehicle has not suffered any physical or body damage other
than normal wear and tear and that any physical or body damage which occurred prior to
the conveyance, with the exception of normal wear and tear, will be repaired or paid for
by Customer or Customer's insurance carrier as their interest may appear.
4. Releases. Except as expressly stated elsewhere in this Agreement, the Parties will have no
further liability or obligations to each other arising out of or related to the Dispute, any of the
claims or subject matter involved therein, or any claims or subject matter which could have been
asserted therein (the "Released Matters"). In consideration of the covenants and agreements of
the Parties contained in this Agreement, the Parties will and do hereby forever relieve, release
and discharge each other party, ________(Center) and Bayerische Motoren Werke AG from
any and all claims, debts, liabilities, demands, obligations, promises, and acts, agreements,
costs, expenses (including, but not limited to, attorneys' fees), damages, actions and causes of
action, of any kind or nature, whether known or unknown, suspected or unsuspected, now
existing or arising in the future, based on, arising out of, or in connection with, the Released
Matters. The Parties acknowledge, understand and agree that this Agreement extends to all
known and unknown personal injuries, emotional distress, loss of use of the Vehicle, loss of
earnings, property damage, costs, maintenance, monetary damages, expenses of past and
future, medical care or expenses of any kind which may have arisen from the Released Matters.
5. Representations and Warranties. The Parties, and each of them, represent and warrant to and
agree with each other as follows:
a) Except as expressly stated in this Agreement, none of the Parties has made any
statement or representation to the others regarding any fact that is relied upon in entering
into this Agreement. , No party to this Agreement relies upon any statement,
representation or promise of any other party not contained herein in executing this
Agreement or in making the settlement provided for herein.
b) There have been no other agreements or understandings between the Parties hereto
relating to the disputes referred to in this Agreement.
c) Each party has made such investigation of the facts pertaining to the underlying dispute
and this Agreement, and all of the matters pertaining thereto, as they deem necessary.
d) The terms of this Agreement are contractual, and are the result of negotiation between
the Parties.
e) This Agreement has been carefully read by each of the Parties and the contents hereof
are known to and understood by each of the Parties. Each party executing this
Agreement signs it freely.
6. Waiver. The Parties expressly waive and release any right or benefit, which they have or may
have under any law or rule of any jurisdiction pertaining to the Released Matters. It is the
intention of each party, through this Agreement, fully, finally, and forever to settle and release all
such matters and claims relative thereto which have existed, do now exist or may exist between
the Parties arising out of or related to the Released Matters. In furtherance of such intention,
the release herein given will be, and remain in effect as, a full and complete release of such
matters notwithstanding the discovery of the existence of any additional claims of facts relating
thereto, The Parties recognize that in executing this Agreement that this instrument shall be
effective as a bar to each and every action, claim, demand or cause of action released
hereby.
7. Settlement. This Agreement effects the settlement of claims, present and possible, which are
denied and contested, and nothing contained herein will be construed as an admission by either
party of liability of any kind to the other party. All such liability is expressly denied.
8. Expense of Litigation. If either of the Parties incurs any expense, including reasonable attorneys'
fees, in connection with any action or proceeding, including one seeking declaratory relief,
instituted by any party by reason of any default or alleged default of another party under this
Agreement, the party prevailing in such action or proceeding will be entitled to recover such
reasonable expenses and attorneys' fees from the opposing party. In addition, should it
become necessary for any party to employ legal counsel to enforce any of the provisions
contained herein, whether or not an action or proceeding will be initiated, the opposing party
agrees to pay all legal fees and other costs reasonably incurred.
9. Predecessors, Successors, Assigns and Beneficiaries. This Agreement will inure to the benefit
of and will bind the predecessors, successors, assigns, representatives, beneficiaries and
attorneys of the Parties, and each of them. This Agreement is intended to and does release and
inure to the benefit of each party and each party's affiliated corporations and other related
business entities (including, without limitation, parent corporations), subsidiaries, divisions,
officers, directors, agents, employees, representatives, shareholders, accountants and
attorneys, individually as well as in the capacity indicated.
1O.lntegration. This Agreement constitutes a single, integrated contract expressing the entire
agreement of the Parties hereto relative to the subject matter hereof. No covenants,
agreements, representations or warranties of any kind whatsoever have been made by any party
hereto, except as specifically set forth in this Agreement. All prior discussions and negotiations
have been and are merged and integrated into, and are superseded by, this Agreement.
11 Severability. In the event that any provision of this Agreement should be held to be void,
voidable or unenforceable, the remaining portions hereof will remain in full force and effect.
12.No Waiver of Obligations Under This Agreement. Nothing contained herein will be construed to
release or discharge any obligation of any party to this Agreement arising hereunder.
13.Choice of Law and Forum. This Agreement will be construed under and controlled by the laws
of the State of texas
14.Counterparts. This Agreement may be executed in one or more counterparts, each of which will be an original, but all of which when taken together will constitute one instrument.
15.Good Faith Compliance. Each party hereto agrees to cooperate in good faith and to do all
things necessary to effectuate this Agreement.
16.Paragraph Headings; Interpretation, Paragraph headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or interpretation of this
Agreement. No provision of this Agreement is to be interpreted for or against any party because
that party or its legal representative drafted such provision.
17,Confidentiality. The Parties will keep confidential the existence and terms of this Agreement.
The Parties also agree not to reveal the facts leading up to, the terms or conditions of this
Agreement, in any communication form, including, but not limited to, word-of-mouth, print,
broadcast or Internet.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties hereto have
executed this Agreement on the dates set forth below.
Date Customer BMW NA Representative
1. Parties. The parties to this Settlement Agreement and Release (the Agreement") are _________________("Customer") and BMW of North America, LLC ("BMW NA"), (Customer and BMW NA collectively referred to herein as the "Parties").
2. Recitals. This agreement is entered into with reference to a dispute arising out of alleged defects and/or nonconformities (the "Dispute" with a _____ BMW _____ bearing Vehicle Identification Number ________________, (the "Vehicle").
3. Affirmative Covenants. In order to compromise and settle all claims between Customer and
BMW NA and in consideration of the premises and the terms and conditions hereinafter set
forth, the Parties hereby covenant as follows:
a) BMW NA will convey to Customer a check in the amount of $________
b) BMW NA will payoff the outstanding loan/lease with in the amount of $_________
c) Concurrent with the execution of this Agreement, Customer will convey the Vehicle to
BMW NA and will execute any and all documents necessary to transfer all of rights, title
and interest in the Vehicle to BMW NA. Customer agrees to satisfy any outstanding lien
or encumbrances on the Vehicle, other than the payoff listed in (b) above, prior to
conveying title to BMW NA.
d) Customer warrants that the Vehicle has not suffered any physical or body damage other
than normal wear and tear and that any physical or body damage which occurred prior to
the conveyance, with the exception of normal wear and tear, will be repaired or paid for
by Customer or Customer's insurance carrier as their interest may appear.
4. Releases. Except as expressly stated elsewhere in this Agreement, the Parties will have no
further liability or obligations to each other arising out of or related to the Dispute, any of the
claims or subject matter involved therein, or any claims or subject matter which could have been
asserted therein (the "Released Matters"). In consideration of the covenants and agreements of
the Parties contained in this Agreement, the Parties will and do hereby forever relieve, release
and discharge each other party, ________(Center) and Bayerische Motoren Werke AG from
any and all claims, debts, liabilities, demands, obligations, promises, and acts, agreements,
costs, expenses (including, but not limited to, attorneys' fees), damages, actions and causes of
action, of any kind or nature, whether known or unknown, suspected or unsuspected, now
existing or arising in the future, based on, arising out of, or in connection with, the Released
Matters. The Parties acknowledge, understand and agree that this Agreement extends to all
known and unknown personal injuries, emotional distress, loss of use of the Vehicle, loss of
earnings, property damage, costs, maintenance, monetary damages, expenses of past and
future, medical care or expenses of any kind which may have arisen from the Released Matters.
5. Representations and Warranties. The Parties, and each of them, represent and warrant to and
agree with each other as follows:
a) Except as expressly stated in this Agreement, none of the Parties has made any
statement or representation to the others regarding any fact that is relied upon in entering
into this Agreement. , No party to this Agreement relies upon any statement,
representation or promise of any other party not contained herein in executing this
Agreement or in making the settlement provided for herein.
b) There have been no other agreements or understandings between the Parties hereto
relating to the disputes referred to in this Agreement.
c) Each party has made such investigation of the facts pertaining to the underlying dispute
and this Agreement, and all of the matters pertaining thereto, as they deem necessary.
d) The terms of this Agreement are contractual, and are the result of negotiation between
the Parties.
e) This Agreement has been carefully read by each of the Parties and the contents hereof
are known to and understood by each of the Parties. Each party executing this
Agreement signs it freely.
6. Waiver. The Parties expressly waive and release any right or benefit, which they have or may
have under any law or rule of any jurisdiction pertaining to the Released Matters. It is the
intention of each party, through this Agreement, fully, finally, and forever to settle and release all
such matters and claims relative thereto which have existed, do now exist or may exist between
the Parties arising out of or related to the Released Matters. In furtherance of such intention,
the release herein given will be, and remain in effect as, a full and complete release of such
matters notwithstanding the discovery of the existence of any additional claims of facts relating
thereto, The Parties recognize that in executing this Agreement that this instrument shall be
effective as a bar to each and every action, claim, demand or cause of action released
hereby.
7. Settlement. This Agreement effects the settlement of claims, present and possible, which are
denied and contested, and nothing contained herein will be construed as an admission by either
party of liability of any kind to the other party. All such liability is expressly denied.
8. Expense of Litigation. If either of the Parties incurs any expense, including reasonable attorneys'
fees, in connection with any action or proceeding, including one seeking declaratory relief,
instituted by any party by reason of any default or alleged default of another party under this
Agreement, the party prevailing in such action or proceeding will be entitled to recover such
reasonable expenses and attorneys' fees from the opposing party. In addition, should it
become necessary for any party to employ legal counsel to enforce any of the provisions
contained herein, whether or not an action or proceeding will be initiated, the opposing party
agrees to pay all legal fees and other costs reasonably incurred.
9. Predecessors, Successors, Assigns and Beneficiaries. This Agreement will inure to the benefit
of and will bind the predecessors, successors, assigns, representatives, beneficiaries and
attorneys of the Parties, and each of them. This Agreement is intended to and does release and
inure to the benefit of each party and each party's affiliated corporations and other related
business entities (including, without limitation, parent corporations), subsidiaries, divisions,
officers, directors, agents, employees, representatives, shareholders, accountants and
attorneys, individually as well as in the capacity indicated.
1O.lntegration. This Agreement constitutes a single, integrated contract expressing the entire
agreement of the Parties hereto relative to the subject matter hereof. No covenants,
agreements, representations or warranties of any kind whatsoever have been made by any party
hereto, except as specifically set forth in this Agreement. All prior discussions and negotiations
have been and are merged and integrated into, and are superseded by, this Agreement.
11 Severability. In the event that any provision of this Agreement should be held to be void,
voidable or unenforceable, the remaining portions hereof will remain in full force and effect.
12.No Waiver of Obligations Under This Agreement. Nothing contained herein will be construed to
release or discharge any obligation of any party to this Agreement arising hereunder.
13.Choice of Law and Forum. This Agreement will be construed under and controlled by the laws
of the State of texas
14.Counterparts. This Agreement may be executed in one or more counterparts, each of which will be an original, but all of which when taken together will constitute one instrument.
15.Good Faith Compliance. Each party hereto agrees to cooperate in good faith and to do all
things necessary to effectuate this Agreement.
16.Paragraph Headings; Interpretation, Paragraph headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or interpretation of this
Agreement. No provision of this Agreement is to be interpreted for or against any party because
that party or its legal representative drafted such provision.
17,Confidentiality. The Parties will keep confidential the existence and terms of this Agreement.
The Parties also agree not to reveal the facts leading up to, the terms or conditions of this
Agreement, in any communication form, including, but not limited to, word-of-mouth, print,
broadcast or Internet.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Parties hereto have
executed this Agreement on the dates set forth below.
Date Customer BMW NA Representative
03-23-2005, 06:35 AM
#6
Contributors
Join Date: Jul 2004
Location: Rancho Santa Margarita, CA
Posts: 712
Likes: 0
Received 0 Likes
on
0 Posts
My Ride: 2005 545i SMG. Titanium Grey with Grey interior and Anthracite wood.
I can not remember if I signed one of these. My thought are this. Like you, I talked about this issue regarding my buyback way before I was presented any documentation. Even if I signed it, which I might of, my prior discussion and exposure of the deal was already public knowledge which in my opinion, voids any confidentially agreement. I am not a Lawyer, so I could be completely wrong.
03-23-2005, 06:35 AM
#7
Contributors
Join Date: Jul 2004
Location: Rancho Santa Margarita, CA
Posts: 712
Likes: 0
Received 0 Likes
on
0 Posts
My Ride: 2005 545i SMG. Titanium Grey with Grey interior and Anthracite wood.
BTW, This post should be locked at the top of the Dealer Forum. This is extremetly important to those who are in the process of a buyback.
03-23-2005, 10:09 AM
#8
Members
Thread Starter
Join Date: Mar 2005
Location: Houston, TX
Posts: 8
Likes: 0
Received 0 Likes
on
0 Posts
My Ride: 2005 BMW 530 (1/05 Production), Nav, Cold Weather Package, Premium Package, Steptronic, Sat Radio, LoJack
BMWwin14rsm, how much (if any) did youhave to pay for the buy back?
03-23-2005, 01:45 PM
#9
Contributors
Join Date: Jul 2004
Location: Rancho Santa Margarita, CA
Posts: 712
Likes: 0
Received 0 Likes
on
0 Posts
My Ride: 2005 545i SMG. Titanium Grey with Grey interior and Anthracite wood.
05-25-2005, 06:27 AM
#10
Members
Join Date: Sep 2004
Location: Northern Virginia
Posts: 67
Likes: 0
Received 0 Likes
on
0 Posts
The guys that went through the buy back, did you guys have to requalify for the financing of the car or was it just a straight trade in and out?
I went to get Sirius installed, and they pulled up my VIN and it is coming up with no Satellite Prep. I look on my Window Sticker and I definitely paid for it. So, they want me to bring down my car so they can figure out if I have it or not. If they don't, I'm not sure on how to handle this. This would be the second major lie that they told me. The first one being that Navigation is available for retro-fit, and the second would now be the Sirius Radio retro-fit.
I went to get Sirius installed, and they pulled up my VIN and it is coming up with no Satellite Prep. I look on my Window Sticker and I definitely paid for it. So, they want me to bring down my car so they can figure out if I have it or not. If they don't, I'm not sure on how to handle this. This would be the second major lie that they told me. The first one being that Navigation is available for retro-fit, and the second would now be the Sirius Radio retro-fit.