Terms and conditions

I. Scope of these Terms and Conditions

The Purchase Agreement shall be governed exclusively by these Terms and Conditions (TC) and the provisions of the ordering documents. Any other terms and conditions attributable to the Customer (as defined below) shall not be applied, regardless of whether smart has expressively objected their application. This shall apply in any case, for example even if smart carries out the delivery to the Customer without objection in the knowledge of the Customer's general terms and conditions.
These Terms and Conditions shall apply on the sale of brand-new vehicles and pre-order vouchers of smart. For pre-order vouchers the provisions in Article XIV (Pre-order) shall apply primarily; the other provisions of these TC shall apply secondarily (and mutatis mutandis insofar as they concern vehicle purchases).

II. Definitions

In these TC, the terms below shall have the following meaning.

“Affiliated Company” shall mean any legally independent enterprise that, in its relationship to smart, is held in majority ownership interest by smart or which holds a majority of smart’s ownership interest, which is controlled by smart and is controlling smart, or which is party to an inter-company agreement.
“Customer” shall mean the customer of the vehicle(s) or the pre-order voucher according to the Purchase Agreement, regardless of the customer being a Consumer or a Trader.
“Consumer” shall mean any natural person who enters into the Purchase Agreement for purposes that are predominantly not related to the Customer’s commercial or independent professional activity.
“Terms and Conditions” or “TC” shall mean these terms and conditions for the sale of new vehicles.
“Party” shall mean one of the parties in Purchase Agreement.
“Parties” shall mean smart and the Customer together.
“Purchase Agreement” shall mean the agreement regarding the purchase of a vehicle or the pre-order voucher that has been or will be entered into by smart and the Customer and for which these Terms and Conditions constitute the terms and conditions.
“smart” shall mean smart UK Automotive Ltd., Milton Keynes Pinnacle, The Pinnacle Midsummer Boulevard, Milton Keynes, MK9 1BP, Great Britain.
“Trader” shall mean a natural or legal person or a partnership with legal personality who or which, when entering into the Purchase Agreement, acts in the exercise of his/her or its commercial or independent professional activity.
“Website” shall mean the website provided by smart, at future.smart.com/, at any time for the sale of vehicles or of pre-order vouchers which fall under these Terms and Conditions.

III. Entering into the agreement, amendments and Assignment

Offers regarding purchase of vehicles from smart are not binding.
The Customer’s signing of the Purchase Agreement or an order form or an order on the website or by telephone, shall be seen as an order which is valid for three weeks. This period is reduced to ten days for vehicles that are on stock by smart. A Purchase Agreement is entered into by the Parties if smart signs the Purchase Agreement or confirms the order via e-mail within three weeks (ten days for vehicles that are on stock by smart) from the order or carries out the delivery. smart is required to inform the Customer without delay if the order is not accepted by smart.
Alterations of and amendments to these Terms and Conditions and the Purchase Agreement must be written (text form sufficient) and accepted by both Parties.
During the delivery period, smart holds right to make modifications to the design or shape, to deviate from the color shade and to make changes to the scope of the delivery, provided that the modifications or deviations are reasonable for the Customer, taking into account the interests of smart. Marks or numbers used by smart or any other manufacturer to identify the order or the ordered sales object shall not grant the Customer any rights.
The Customer’s rights and obligations under the Purchase Agreement cannot be transferred unless smart gives written approval. This does not apply to a claim for money of the Customer against smart. For other claims of the Customer against smart, the prior consent of smart is not required if smart has no interest worthy of protection in an exclusion of assignment or legitimate interests of the Customer in assignability of the right outweigh smart’s protectable interest in an exclusion of assignment.

IV. Delivery and Prices

The prices include the applicable statutory value-added tax plus any transfer costs.
Delivery is carried out at the premises of a smart agents’ location which the Customer is free to choose upfront according to section 3 of this Article IV and which will be specified in the order.
The Customer can choose at which of smart’s agents’ locations within UK the delivery of the vehicle shall be made.
If a sales object cannot be delivered on the scheduled delivery date because of a discontinuation of production of the series, both Parties shall be released from the obligations under the Purchase Agreement as regards to the concerned sales object. In such case smart shall inform the Customer without delay and reimburse the Customer for any received consideration. Under such circumstances, smart shall not be obliged to deliver the object originally ordered.

V. Consumers right to cancel an order

If the Customer is a Consumer, the Consumer is entitled to the following right in addition to the statutory rights, in particular in addition to the statutory right to withdrawal from (see Article XV (Information on the right of withdrawal for Consumer after purchases online or by telephone)) or to revoke the Purchase Agreement, which shall not be affected by the provision in this Article V (Consumers right to cancel an order):

The Consumer holds the right to cancel an order up until the delivery of the vehicle. In the event of such a cancellation, the Consumer is obliged to pay compensation to smart to the extent stated below in this Article V (Consumer rights to cancel an order). If the Consumer cancels the order before smart signs the Purchase Agreement or sends a confirmation of the order to the Consumer, the Consumer is not obliged to pay any compensation for the cancellation.
If the Consumer cancels the order after a binding agreement has been concluded, smart is entitled to compensation of 15 % of the agreed sales price. The compensation shall be set higher or lower if smart proves a higher damage or the Customer proves that a lower damage or no damage at all has occurred.
However, smart shall have no right to compensation due to the Consumer’s cancellation if the vehicle is intended for use by disabled persons.

VI. Discounts

If the Customer is a Trader, the following shall apply:
a) It is required, in order for the Trader to obtain the discount as specified in the Purchase Agreement, that the Trader agrees to keep the vehicle and remain the registered owner and the user of the vehicle for at least 6 months after the delivery of the vehicle, and that the vehicle, during this period, is used only in the Trader’s business. If required, the Customer must prove that these terms are met.
b) If the Customer sells the vehicle within the specified term of 6 months, the requirements for obtaining discounts shall be deemed as not fulfilled, and smart reserves the right to demand repayment from the Customer of any obtained discount, i.e. the difference between the list price and the price paid by the Customer.
For Customers who are Consumers, no corresponding terms apply for obtaining discounts.

VII. Payment, Payment delays and Offsetting

The purchase price and prices for additional services are due upon delivery of the vehicle and handing over or sending of the invoice.
smart will invoice the Customer for the purchase price before the vehicle is delivered. Same holds true for eventual down payment according to financing or leasing agreement which will be invoiced to the Customer by the smart Financial Partner before the vehicle is delivered.
The total amount stated in the Purchase Agreement shall be paid as the Purchase price if a delivery period of up to 4 months has been agreed in the Purchase Agreement or if delivery is made within 4 months. Otherwise, the purchase price shall change in the same proportion as the smart's price list for vehicle, special equipment and transfer costs plus sales tax change until the date of delivery.
The Customer may revoke the contract if the sum of the purchase prices for the vehicle and special equipment and the fee for the transfer in the purchase price notification exceeds the sum of the prices stated for the same scope in the Purchase Agreement by more than 3 %.
The revocal must be made in text form within 2 weeks of receipt of the purchase price notification.
Payment must be made by bank transfer to the account shown on the invoice. If the Customer is in payment delay, smart holds the right to claim advance payment on all outstanding orders, regardless of the size of the amount for which payment is delayed.
The Customer only has the right to offset claims against claims of smart, if such claims are undisputed or a legally binding title exists. This does not apply to counterclaims of the Customer arising from the same Purchase Agreement. The Customer shall only be entitled to assert a right of retention to the extent such right is based on claims deriving from the same Purchase Agreement.

VIII. Delivery Time, Delay in Delivery and Force Majeure

The estimated period of delivery, which may be agreed as binding or non-binding, is normally stated in the Purchase Agreement, order confirmation by email or in connection therewith. The delivery period begins with the conclusion of the Purchase Agreement.
smart cannot guarantee that the delivery time always can be specified. If no delivery time has been specified, the vehicle shall be delivered within a reasonable period of time, which, under normal conditions, is 12 weeks for new vehicles on stock and up to 32 weeks for vehicles manufactured according to the Customer’s instructions. The aforementioned delivery periods shall be understood as non-binding.
After the expiry of six weeks after a non-binding delivery date or after a non-binding delivery period, the Customer may request smart to deliver the vehicle purchased. This period is reduced to ten days for vehicles that are available at case smart. Upon receipt of the request, smart shall be in default.
If the Customer is entitled to compensation for damage caused by delay, this shall be limited to a maximum of 5 % of the agreed purchase price in the event of slight negligence on the part of smart.
If the Customer also wants to revoke the contract and/or claim damages instead of performance, the Customer must set smart a reasonable deadline for delivery after expiry of the relevant deadline in accordance with section 3, sentence 1 or 2 of this Article VIII (Delivery Time, Delay in Delivery and Force Majeure).
If the Customer has a claim for damages in lieu of performance, the claim shall be limited to a maximum of 25 % of the agreed purchase price in the event of slight negligence. If the Customer is a Trader, claims for damages in lieu of performance are excluded in the event of slight negligence.
If, while smart is in default, delivery becomes impossible by coincidence smart shall be liable with the limitations of liability agreed above. smart shall not be liable if the damage would also have occurred in the event of timely delivery.
In the event of a delivery delay, the Customer shall be informed regarding the delay without undue delay.
If a binding delivery date or a binding delivery period is exceeded, smart shall already be in default upon exceeding the delivery date or the delivery period. The rights of the Customer shall then be determined in accordance with section 3 sentence 3 and section 4 of this Article VIII (Delivery Time, Delay in Delivery and Force Majeure).
The limitations of liability and exclusions of liability in this Article VIII (Delivery Time, Delay in Delivery and Force Majeure). shall not apply to damage caused by a grossly negligent or intentional breach of obligations by smart, its legal representative or its vicarious agent, or in the event of injury to life, limb or health.
In the event that smart, without negligence, is temporarily prevented from delivering at the agreed time or during the agreed period of delivery due to force majeure events or business interruptions at smart or any of smart’s suppliers, smart shall be released from the obligation to deliver for the duration and to the extent of the effect. Therefore the dates and periods specified in the sections 1 to 6 of this Article VIII (Delivery Time, Delay in Delivery and Force Majeure) shall be extended with a period corresponding to the period of time under which the preventing circumstances are hindering delivery.
Force majeure events within the meaning of this section shall be any extraordinary event that is beyond smart’s control, unforeseeable and uncontrollable and cannot be prevented or averted by smart even by exercising the highest degree of care, and which prevents smart from fulfilling its obligations in whole or in part, in particular, natural disasters, fire damage, floods, strikes, unexpected pandemics or epidemics as well as operational disruptions or official decrees for which smart is not responsible. Supply difficulties and other disruptions of performance on the part of smart's suppliers shall only be considered force majeure events if the supplier, for its part, is prevented from providing the performance it is obligated to provide due to an event pursuant to the provisions of this Article VIII section 8.
Smart shall notify the Customer immediately of the occurrence as well as the disappearance of a force majeure event. smart will make every effort to remedy the force majeure event and to limit its effects as far as possible.
If such disruptions lead to suspension of performance for 4 months or more, both Parties shall hold the right to terminate the agreement. If smart terminates the Purchase Agreement, smart shall immediately refund any payment already paid by the Customer.
This shall not affect the right to terminate the Purchase Agreement on other grounds.

IX. Liability

smart is liable for any damages arising from the contract concluded with the Customer for intent and gross negligence.
Further, smart is liable for the negligent breach of obligations, whose fulfillment is essential to enable the ordinary implementation of the contract, whose breach jeopardizes the achievement of the purpose of the contract and on whose compliance the Customer may rely on regularly. In this case, smart is only liable for the foreseeable, typical contractual damage.
The personal liability of the legal representatives, vicarious agents and employees of smart for damages caused by them due to slight negligence is excluded.
The preceding limitations of liability also apply to breaches of duty by smart’s legal representatives or vicarious agents.
The abovementioned exclusions of liability do not apply in case of damage of life, body and health. The liability pursuant to the product liability law remains unaffected.
The terms of this Article shall not affect any guarantee given by smart.
Irrespective of fault, smart’s liability shall not be affected in case of smart’s willful concealment of errors, or if smart has provided a guarantee or accepted a procurement risk in accordance with the UK Law.

X. Complaints

The Customer should make a complaint for any detected error to smart as soon as possible after the error has been detected.
If the Customer is a Trader, any warranty rights of the Customer shall be subject to the Customer's due fulfillment of all inspection and complaint obligations pursuant to section 377 of the German Commercial Code.

XI. Warranty

Claims of the Customer due to material defects (in German: Sachmängel) shall lapse in accordance with the statutory provisions.
Notwithstanding the foregoing, a limitation period of one year shall apply if the Customer is a legal entity under public law, a special fund under public law or a Trader.
In the event of a material defect of the vehicle purchased, the Customer shall be entitled to statutory warranty rights against smart.
If a material defect is to be remedied, the following shall apply:
a) The Customer may assert claims for remedy of material defects against smart or against other companies recognized by the manufacturer/importer for the servicing of the vehicle purchased; in the latter case, the Customer shall inform smart thereof without delay if the first attempt to remedy the material defect was unsuccessful. In the case of oral notifications of claims, the Customer shall be provided with a written confirmation of receipt of the notification.
b) If the vehicle purchased becomes inusable (in German: betriebsunfähig) due to a material defect, the Customer shall contact the nearest repair company to the location of the inusable vehicle purchased, recognized by the manufacturer for the servicing of the vehicle purchased.
c) Replaced parts shall become the property of smart.
d) The Customer may assert claims for material defects based on the purchase contract for the parts installed to remedy the material defect until the expiry of the limitation period of the vehicle purchased.
Claims for remedy of defects shall not be affected by change of ownership of the vehicle purchased.
If the Customer is a Trader, smart holds the right to remedy the error or to redeliver. The Trader holds the right to cancel the purchase in case a material error remains after three remedy attempts. If the purchase is cancelled, smart will hold the right to make deductions on the purchase price for the benefit that the Trader has obtained from the vehicle with 0,67 % of the purchase price per driven 1.000 km (one thousand) since delivery. However, smart shall never be obliged to pay more for the returned vehicle than corresponds to the market value for the vehicle if it would be free from errors.
This Article XI (Warranty) shall not apply to claims for damages; such claims shall be governed by Article IX (Liability).

XII. The Customer’s Delay

The Customer is obliged to accept (in German: Abnahme) the vehicle purchased within 14 days from the date of receipt of the notification of readiness.
In case of non-acceptance, smart may exercise its statutory rights. If smart claims damages, these shall amount to 15 % of the purchase price. The compensation shall be set higher or lower if smart proves a higher damage or the Customer proves that a lower damage or no damage at all has occurred.
If the Customer is a Consumer and the Consumer does not pay on time, smart hold the right to demand payment and interest in accordance with UK Law.

XIII. Registration and warranty

Passenger cars from smart are covered by a three-year new vehicle warranty. The new-vehicle warranty applies from the day of delivery or, when applicable, from an earlier first day of registration, without mileage limitation. The new-vehicle warranty supplements the statutory liability and provides a secure and safe protection during the first three years.
The area of validity of the smart new vehicle warranty covers the member states of the European Economic Area (EEA), Andorra, Israel, Monaco, Montenegro, San Marino, Switzerland, Serbia, Turkey, the Vatican City and the United Kingdom.

XIV. Pre-order

If a Customer participates in the pre-order campaign, the purchase of a pre-order voucher (“pre-order”) grants the Customer the possibility of priority with regard to a subsequent vehicle purchase. The pre-order does not refer to the sale or the delivery of a vehicle and the Customer does not order a vehicle. The pre-order also does not constitute a down payment for a subsequent vehicle purchase or any form of preliminary contract with regard to a subsequent vehicle purchase.
Placing a pre-order does not guarantee the possibility of a subsequent vehicle purchase, specific vehicle price or delivery date. Any vehicle specifications or details of price and delivery date in the pre-order campaign are non-binding and subject to change. The Customer is informed that the development of the vehicle has not yet been completed and that the exact performance of the vehicle (including emission behavior) can therefore not yet be named conclusively.
The Customer needs to register for a smart account in order to place a pre-order and by doing so he gets a smart ID. After logging into Customer’s smart account the Customer has to enter Customer’s master/address data and select a payment method (credit/debit card or online bank transfer, if applicable). The payment is processed by Deutsche Bank AG as payment service provider. The Customer shall ensure that the data entered by Customer is accurate, so that communication by smart regarding the order processing can be received.
The pre-order voucher offering by smart does not constitute a legally binding offer for the conclusion of a contract but is intended for the submission of a legally binding offer by the Customer. By clicking the “Order now” button, the Customer submits a legally binding offer for a pre-order voucher. Prior to the binding submission, all entries can be corrected at any time using the usual keyboard and mouse functions. The pre-order becomes effective and the Purchase Agreement with regard to the pre-order voucher is concluded when smart receives the Customer’s pre-order payment and when smart confirms the pre-order to the Customer by email (order confirmation). The text of the contract will not be stored by smart and cannot be retrieved by the Customer after submitting Customer’s binding offer. If needed, the Customer is advised to retrieve the text of the contract before submitting Customer’s binding offer.
The pre-order may be canceled by either Party at any time until its redemption (at the latest three (3) years after placing the pre-order) and the reservation payment will be fully refunded in this case. For any cancellation requests, the Customer shall contact smart via the contact form on the website of smart or one of its Affiliated Companies. The Customer shall have no right to a refund of the pre-order voucher after its redemption.
smart will contact the Customer and ask Customer to convert Customer’s pre-order into a subsequent vehicle purchase. The Customer then will have the possibility to complete the order process and redeem Customer’s pre-order voucher. If the Customer does not respond to the contact of smart, the Customer may lose any priority or delays may occur.
The subsequent vehicle purchase may be concluded with a different contracting party and may be subject to different or additional terms and conditions provided by smart or one of its Affiliated Companies at the time of contract conclusion. Unless the Customer has been notified otherwise by smart, the pre-order voucher value will be deducted from the end price of the Customer’s subsequent vehicle purchase or in the case of a leasing contract the Customer will receive a corresponding refund.
The Customer is only allowed to redeem Customer’s own personalized pre-order voucher(s). Unless expressly agreed otherwise in writing, pre-order vouchers are not transferable and may not be redeemed on behalf of a third party. The Customer can redeem the voucher exclusively in the country of smart’s company address mentioned in Article II section 8 above and exclusively towards smart. The Customer may only redeem one pre-order voucher per subsequent vehicle purchase. The pre-order voucher may not be combined with other pre-order vouchers or other discounts.

XV. Information on the right of withdrawal for Consumer after purchases online or by telephone

When concluding a distance contract, Consumers have a statutory right of withdrawal. Distance contracts are contracts for which the Consumer exclusively avail themselves of means of distance communication (e.g. telephone calls or via the website) in negotiating and concluding the contract. smart informs about the right of withdrawal below:

Right of withdrawal: The Customer has the right to withdraw from the Purchase Agreement within 14 days without giving any reason.
The withdrawal period will expire after 14 days from the day on which the Consumer acquires, or a third party other than the carrier and indicated by the Consumer acquires, physical possession of the goods.
To exercise the right of withdrawal, the Consumer must inform smart UK Automotive Ltd., The Pinnacle, Midsummer Boulevard, Milton Keynes, MK9 1BP, United Kingdom, or the authorized agent for smart that handed over the vehicle to the Consumer of Customer’s decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post or e-mail). The Consumer may use the attached model withdrawal form, but it is not obligatory. The Consumer can also electronically fill in and submit the model withdrawal form or any other unequivocal statement on smart’s website. If the Consumer uses this option, smart will communicate to the Consumer an acknowledgement of receipt of such a withdrawal on a durable medium (e.g. by e-mail) without delay.
To meet the withdrawal deadline, it is sufficient for the Consumer to send Customer’s communication concerning Customer’s exercise of the right of withdrawal before the withdrawal period has expired.
Effects of withdrawal: If the Consumer withdraws from the Purchase Agreement, smart shall reimburse to the Consumer all payments received from the Consumer, including the costs of delivery (with the exception of the supplementary costs resulting from y the Consumer’s choice of a type of delivery other than the least expensive type of standard delivery offered by smart), without undue delay and in any event not later than 14 days from the day on which smart is informed about the Consumer’s decision to withdraw from this contract. smart will carry out such reimbursement using the same means of payment as the Consumer used for the initial transaction, unless the Consumer has expressly agreed otherwise; in any event, the Consumer will not incur any fees as a result of such reimbursement. smart may withhold reimbursement until smart has received the goods back or the Consumer has supplied evidence of having sent back the goods, whichever is the earliest.
The Consumer shall send back the vehicle or hand it over to smart or to the authorized agent for smart at the hand-over location, the address of which is given in the Purchase Agreement, or another location which is agreed between the Parties, without undue delay and in any event not later than 14 days from the on which the Consumer communicate Customer’s withdrawal from the Purchase Agreement to smart. The deadline is met if the Consumer sent back the goods before the period of 14 days has expired.
The Consumer will have to bear the direct cost of returning the goods. The Consumer is entitled to have the vehicle delivered to a smart agent of the Consumer’s choice within UK. The cost is estimated at a maximum of approximately 500 EUR (five hundred) within UK.
The Consumer is only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.
Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
To:
smart UK Automotive Ltd.
Milton Keynes Pinnacle, The Pinnacle Midsummer Boulevard, Milton Keynes, MK9 1BP, Great Britain
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
- Ordered on (*)/received on (*),
- Name of consumer(s),
- Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
Date

(*) Delete as appropriate

XVI. Retention of title

The vehicle shall remain the property of smart until the claims to which smart is entitled on the basis of the Purchase Agreement have been settled.
If the Customer is a Trader, the retention of title shall also apply to the smart’s claims against the Trader arising from the ongoing business relationship until the settlement of claims due in connection with the purchase.
At the Customer's request, smart shall be obliged to waive the retention of title if the Customer has incontestably settled all claims in connection with the vehicle purchased and adequate security exists for the remaining claims arising from the ongoing business relationship.
For the duration of the retention of title, the smart shall be entitled to the right of possession of the registration certificate part II (vehicle title).
If the Customer does not pay the due purchase price and prices for ancillary services or does not pay in accordance with the Purchase Agreement, smart may withdraw from the Purchase Agreement and/or, in the event of culpable breach of duty on the part of the Customer, claim damages in lieu of performance if it has unsuccessfully set the Customer a reasonable deadline for performance, unless the setting of a deadline is dispensable in accordance with the statutory provisions. If smart is entitled to claim damages instead of performance and if smart takes back the vehicle purchased, smart and the Customer agree that smart shall remunerate the ordinary sales value of the vehicle purchase at the time of taking back. At the request of the Customer, which can only be expressed immediately after taking back the vehicle purchased, a publicly appointed and sworn expert, e.g. of Deutsche Automobil Treuhand GmbH (DAT), will determine the normal sales value at the Customer's discretion. The Customer shall bear the necessary costs of taking back and realizing the vehicle purchased. The costs of realization shall amount to 5 % of the usual sales value without proof. They shall be set higher or lower if smart proves higher costs or the Customer proves that lower costs or no costs at all were incurred.
As long as the reservation of title exists, the Customer may neither dispose of the vehicle nor contractually grant third parties a use.

XVII. Jurisdiction and Applicable Law, Online and Alternative Dispute Resolution

If any paragraph in these GTC or in any other agreement entered into are or is deemed as invalid or ineffective, this shall not affect the validity of other parts of the agreement. If the Customer is a Trader, in addition, the Parties undertake to replace any invalid or inactive paragraphs with a paragraph that, as closely as possible, complies with the commercial purpose of the invalid or inactive paragraph.
UK law shall apply on this agreement. The contract language is English.
If the Customer is a Trader, the place of jurisdiction for all disputes arising from the contractual relationships between the Customer and smart shall be Stuttgart, Germany.
The European Commission provides a platform for online dispute resolution under http://ec.europa.eu/consumers/odr/. smart does not participate in this dispute resolution process.
smart is not obligated and not willing to participate in dispute resolution proceedings pursuant to the German Consumer Dispute Resolution Act (VSBG).
If the Customer is a Consumer, the place of jurisdiction for all disputes shall be London provided that the Consumer had his domicile or habitual residence in UK at the time of conclusion of the Purchase Agreement and have either moved out of UK at the time smart files an action or your domicile or habitual residence is unknown at that time.