(1) These General Terms and Conditions (hereinafter called: „GTC“) shall include any and all applicable terms and conditions between the company Manhart Performance GmbH & Co. KG (hereinafter called: „MHP“) and its contractual partners (hereinafter called: „Customers“). These General Terms and Conditions shall apply exclusively. Any deviating or contradicting terms and conditions shall not be accepted, unless expressly accepted by MHP.
(2) Customers in the sense of these GTC shall both be consumers (§ 13 German Civil Code (BGB)) as well as entrepreneurs (§ 14 German Civil Code). As an individual shall be regarded everybody who concludes a legal transaction that predominantly has no connection with the commercial or selfemployed activity of the same. As an entrepreneur shall be regarded every individual or legal body that upon the conclusion of a legal transaction acts within the framework of its commercial or selfemployed professional activity.
For all consumers the following shall apply:
(1) Offers from MHP to consumers shall be binding.
For all entrepreneurs the following shall apply:
(2) Offers from MHP to entrepreneurs shall always be non-binding, unless the offer expressly states anything different. MHP shall be bound by any bindingly given offer for a term of 6 weeks.
When MHP provides counselling services these shall be based upon best knowledge and experience of MHP. Details to the quality of products and/ or technical performance shall only cause a warranty promise when MHP declares the promise of warranty expressly in writing.
(1) Unless anything to the contrary is stipulated, the prices of MHP shall be ex works plus the respective applicable VAT rate. The cost for freight, duty, postage, insurance and other expenses shall be borne by the Customer. Freight cost regarding delivery abroad as well as for items that due to their nature are delivered by forwarding agents, shall be invoiced separately. The Customer shall assume such cost as recipient upon receipt of the items.
(2) Unless agreed to the contrary in writing the following payment conditions shall apply:
a) Any claims of MHP shall be due with immediate effect. In the event the Customer is obliged to accept the good as produced according to the contract, the claim shall become due at the latest within fourteen days after acceptance. The same like upon acceptance shall apply when the Customer does not accept the good within the aforesaid term although the Customer is obliged to do so.
b) Payment by cheque and bill of exchange shall only be accepted on account of performance. The acceptance of bills of exchange shall be subject to a prior written agreement.
c) Customers shall only be entitled to set-off with counterclaims when these are recognized by declaratory judgment and are uncontested.
d) Only to Consumers the following shall apply:
A Customer, that is a consumer, shall be obliged to pay interest on arrears in the amount of five percentage points above the respective base interest rate to MHP upon delay of payment. Regarding a Customer, that is an Entrepreneur § 4 (2) d sentence 1 shall apply with the rule that Only to Entrepreneurs the following shall apply:
Regarding a Customer, that is an Entrepreneur § 4 (2) d sentence 1 shall apply with the rule that the rate of interest on arrears shall be nine percentage points above the respective base rate. MHP reserves its right to prove and claim a higher damage caused by the delay.
(1) Delivery shall generally be carried out ex works MHP (place of performance). MHP may agree with the Customer that a different place be the place of performance. In the event it is agreed with the Customer that MHP assumes the cost of delivery this shall not mean that the place where delivery is carried out is the place of performance.
Only to Entrepreneurs the following shall apply:
(2) The commencement of a delivery period given or agreed by MHP presupposes that any and all technical issues are resolved before. Further precondition is the timely and orderly fulfillment of the obligation to cooperate as agreed with the Customer or to which it is obliged. Any agreed delivery period shall recommence if subsequently a change of the scope of performance is agreed.
(3) In the case of an operational breakdown at MHP or at its subsequent suppliers that is based on force majeure, the agreed delivery period shall extend by the period of breakdown. Any commencement and end of a possible breakdown shall be communicated to the Customers without delay.
(4) Due to the non-observation of a delivery period or delivery date the Customer may rescind the contract only when it set a suitable grace period to MHP and MHP is responsible for the exceeded delivery period /date. This limitation of the right of rescission shall not apply when MHP expressly and seriously refused its rendering of the performance. The limitation of the right of rescission shall also not apply when particular circumstances justify any immediate rescission upon balancing mutual interests.
(5) MHP shall be entitled to render partial performance when the performance obligation of MHP can be divisible in the legal sense. MHP shall also be entitled to render partial performance when the goods to be delivered can be delivered or dispatched separately without jeopardizing any other performance of MHP.
Only to Entrepreneurs the following shall apply:
(1) The obligation of MHP to perform shall be fulfilled upon readiness of the good to be picked up at the place of business of MHP (obligation to collect ex works).
(2) In the event the good is delivered to the Customer upon its request, then upon dispatch to the Customer, at the latest upon leaving the works, the risk of accidental loss or accidental deterioration of the good shall pass onto the Customer. This shall apply independently from whether the goods are dispatched from the place of performance and which party bears the freight cost.
(3) The Customer shall inspect the goods upon receipt without delay regarding damage in transit and inform MHP without delay regarding any damage or loss.
(4) In the event the Customer infringes any obligations as provided in section 3, the delivered goods shall be regarded as accepted.
(5) In the event formal acceptance is agreed this shall be carried out at the latest within 5 business days after completion is reported; formal acceptance shall be regarded as being given if the Customer does not object to the effect of acceptance.
(1) Based on the claims from the contractual relationship, MHP shall be entitled to a contractual pledge on such objects that by installation into a vehicle or by delivery has been owned by the Customer.
(2) Based on the claims from the contractual relationship, MHP shall be entitled to a contractual pledge of objects when these upon manufacture or for the purpose of repair have been owned by the Customer.
(3) Regarding any other claim from the contractual relationship the contractual pledge shall only apply to the extent when these claims are uncontested or are recognised by declaratory judgment, and the contractual good is owned by the Customer.
(1) To the extent installed accessory parts, repair parts and aggregates (hereinafter called: „pledge“) have not become essential components of the vehicle, MHP reserves its right of ownership on these until payment is rendered in full.
Only to Entrepreneurs the following shall apply:
(2) Upon any behaviour of the Customer that is contrary to contract, upon delay in payment in particular, MHP shall be entitled to withdraw the pledge. The withdrawal implies rescission of contract. After having withdrawn the pledge MHP shall be entitled to realise it. The proceeds of realisation shall be set off against the liabilities of the Customer – less reasonable realisation cost.
(3) The Customer shall be obliged to handle the pledge with care. The Customer shall in particular be obliged to obtain at own cost sufficient insurance coverage for new replacement of the pledge in the case of damage caused by fire, water and theft. If maintenance work and inspection become necessary the Customer shall carry out such on own cost in a timely fashion.
(4) In the event of attachment or any other intervention of any third party, the Customer shall inform MHP without delay in writing. MHP reserves its right to take action pursuant to § 771 German Code of Civil Procedure (ZPO). In the event that the respective third party is not in a position to refund the judicial and extrajudicial cost of an action pursuant to § 771 German Code of Civil Procedure (ZPO) to MHP, then the Customer shall be liable towards MHP for the incurred loss.
(5) The Customer shall be entitled to resell the pledge within the framework of its normal course of business. If the Customer resells the pledge, the Customer shall already at this point in time assign any and all claim in the amount of the total invoice amount (including VAT) to MHP, that accrue to the Customer from the reselling to its purchasers or third parties. This shall apply irrespectively from whether the pledge was resold without or after processing. After assignment the Customer shall still be entitled to collect this claim. The power of MHP to collect the claim itself shall not be affected thereby. MHP shall, however, be obliged not to collect the claim as long as the Customer meets its payment obligations from the collected proceeds. The same shall apply when the Customer is not in delay of payment and in particular no petition for the institution of settlement or insolvency proceedings was filed or payment was suspended. If this is the case ,however, MHP may request that the Customer disclose the claims and the debtors as assigned to MHP and provides any and all details for collection. Further, the Customer shall provide to MHP any and all documents associated in this context and inform the debtors (third parties) about the assignment.
(6) The processing or any other transformation of the pledge by the Customer shall always be carried out in favour of MHP. In the event the pledge is processed or transformed together with other objects, that do not belong to MHP, then MHP shall obtain co-ownership in the new product in the proportion of the value of the pledge (total invoice amount, including VAT) to the other processed goods at the point of processing. (7) MHP undertakes to release the securities MHP is entitled to, upon request of the Customer, insofar as when the realisable value of such securities exceeds the values of the claims to be secured by more than 10%. MHP may choose the securities that are to be released.
(1) In the event vehicle parts of MHP are used in road traffic that are not permitted for road traffic according to the Road Traffic Regulation (German STVO), any liability of MHP regarding claims for warranty, liability and damages shall be excluded. The Customer/vehicle owner shall take care that under observation of the legal provisions the vehicle parts obtain permission at the competent vehicle registration office. The same shall apply to safety of use of the parts in road traffic. MHP shall not carry out any inspection in this respect. There shall be no legal obligation of MHP to have carried out any release by the TÜV (biggest German technical inspection agency) or by any other inspection agency.
(2) Regarding deliveries abroad section 1 shall apply providing that the Customer / vehicle owner shall observe any and all legal provisions of the respective other country.
(1) Warranty for defects shall be subject to the legal provisions.
Only to Entrepreneurs the following shall apply:
(2) The warranty shall be limited to 1 year. The limitation shall not apply in the case of damage claims.
(3) MHP shall be entitled either to repair the defect or to provide replacement to the customer. If in the framework of subsequent performance the delivered good is brought to a location other than the delivery place or the place of business of the Customer, then MHP shall not be obliged to bear any additional cost incurred by such subsequent performance.
(4) Claims for defects by the Customer presuppose that it has orderly carried out its inspection and complaint obligations legally requested pursuant to § 377 German Commercial Code (HGB).
(5) MHP shall be liable for wilful intent and gross negligence. Further, MHP shall be liable for negligent violation of obligations, the fulfilment of which is vitally necessary for the proper performance of contract, the violation of which jeopardizes the reaching of the purpose of contract, and the observation of which the Customer generally relies on. In the latter mentioned case MHP shall only be liable regarding the foreseeable contractual damage. MHP shall not be liable for any slightly negligent violation of any other obligation as listed in the foresaid sentences. The foregoing exclusion of liability shall not apply regarding injury of life, body or health.
(6) Any contributory negligence of the Customer shall be attributed to it in money terms. (7) Liability pursuant to the Product Liability Law shall remain unaffected thereby.
Only to Consumers the following shall apply:
(1) For Customers, that are Consumers, the statutory periods of limitation shall apply.
To Entrepreneurs the following shall apply:
(2) The limitation period regarding claims against MHP shall be one year. This shall not apply to any intentional or gross negligent breach of duty that MHP is responsible for. The aforesaid period shall also apply to any and all claims of Customers due to any defective performance of MHP.
(3) The aforesaid limitation period shall be a cut-off period for the right of rescission from contract and reduction of the purchase price.
(4) The two aforesaid sections shall not apply in the case when claims are established against MHP on the basis of injury of life, body or health or the German Product Liability Law. In such case t statute of limitation of any claims against MHP is subject to the law.
MHP may conclude an individual guarantee agreement (hereinafter „Guarantee“) with its Customers. This Guarantee shall be an independent guarantee promise and shall be granted to th Customer irrespective of any legal warranty obligation.
(2) Conclusion of a Guarantee Agreement
Unless anything different is agreed between MHP and the Customer, the guarantee shall be with cost. Regarding the conclusion of a guarantee agreement the sections §§ 2 through 5 of these GTC shall apply analogously.
(3) Parts covered by the Guarantee
a) The guarantee shall include the parts, all of which are listed hereinafter: motor, turbo charger, gearboxes, axis drive, transmission shafts, brakes, suspension as well as electrical systems.
b) MHP shall not give any guarantee on operating materials and auxiliaries, like fuels, chemicals, filter elements, cooling and anti-freezing agent, hydraulic fluid, oil, fats, and other lubricants.
(4) Guarantee Period
a) In the base version for vehicles up to 3 years as of first registration and a maximum mileage of 100,000 km the period shall be 12 or 24 months as of conclusion of agreement. In the extended version for vehicles up to 6 years as of first registration and a maximum mileage of 120,000 km the term shall be 12 or 24 months as of conclusion of agreement.
b) The term shall be fixed in the Guarantee Agreement.
(5) Preconditions and Scope of Guarantee, Exclusions
In the event a part that is covered by the guarantee directly loses its functionality within the agreed guarantee term and must be repaired the following provisions shall apply:
a) Precondition for the guarantee obligation of MHP shall be a defect, which was caused by a functional failure of an aggregate covered by the guarantee within the sense of the aforesaid guarantee conditions and for which no exclusion of guarantee exists. Cost incurred for repair shall be refunded subject to the maximum amounts of refund.
b) Excluded from the guarantee shall be:
aa) Damage due to operating errors, accident, force majeure and external influence (e.g. rodent bites, water ingress, frost damage) as well as illegal tunings by the Customer and intentionally caused damage.
bb) Damage caused by motoring use of the vehicle.
c) The Guarantee shall further expire when maintenance service was not carried out according to the conditions, unless the Customer is able to prove that there is no causal relationship between the non-observation of the maintenance interval and the occurrence of the damage.
d) The Guarantee shall not cause any claim to rescission or reduction of the price. The making of warranty claims shall not be affected thereby.
(6) Scope of Guarantee
Repair shall be carried out according to the technical requirements by replacement or repair of the parts of the manufacturer. The extent of the guarantee claim with regard to cost shall be limited by the time value of the motor vehicle at the time when the damage covered by the guarantee occurred.
(7) Guarantee Handling
The purchaser shall inform MHP without delay regarding any damage that is covered by the guarantee prior to the commencement of repair and agree about the scope of repair. The Customer shall be obliged to enable MHP to carry out inspection or test drive prior to the commissioning of any repair. MHP shall have the right to inspect any defective part or aggregate to assess the damage. The Customer shall be obliged to inspect removed parts for inspection upon request of MHP. The acceptance as a guarantee case can only be given after test completion. Promises for refund of cost shall only become effective upon written confirmation. In the event a repair is carried out without prior damage report to MHP the guarantee claim shall be void.
Only to Entrepreneurs the following shall apply:
(1) Place of performance and place of jurisdiction shall be the place of business of MHP. MHP shall, however, be entitled to suit the Customer at the place of business of the Customer.
(2) The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.
(1) The following business terms are applicable to all the contracts, which you conclude with us as a supplier (MANHART Performance GmbH & Co. KG) via the website. Unless otherwise agreed upon, the inclusion, if necessary, of your own conditions is ruled out.
(2) A ‘consumer’ in the sense of the following regulations is every natural person who concludes a legal transaction which, to an overwhelming extent, cannot be attributed to either his commercial or independent professional activities. The term ‘businessman’ refers to every natural person, legal person or legally responsible partnership that concludes a legal transaction in pursuance of his/its independent professional or commercial activity.
(1) The subject-matter of the contract is the selling of products and/ or the provision of repair services.
(2) On placing the product in question on our website, we provide you with a binding offer to conclude a sales agreement subject to the conditions specified in the item description.
(3) The purchase agreement takes place via the online shopping cart system as follows: The products and/ or repair services intended for purchase are moved to the “shopping cart”. You can select the shopping cart using the appropriate buttons on the navigation bar and make changes there at any time.
After calling up the “Checkout” page and entering the required personal data and payment and shipping conditions, all order information is then displayed again on the order summary page. If you used an instant payment system (e.g. PayPal / PayPal Express, Amazon-Payments, Sofort) to initiate payments, you will either be guided to our online shop on the order summary page or forwarded to the web page of the instant payment provider.
If you are forwarded to the instant payment system, choose and enter your details as appropriate. You will then be returned to the order summary page in our online shop.
Before the order is sent, you can re-check all the data, change it (which can also be done via the internet browser’s ‘back’ function) or cancel the purchase transaction.
By clicking the “Place order in conjunction with a liability to pay” button to submit the order, you declare acceptance of the order in a legally binding way by which the purchase agreement takes place.
(4) You are not bound by your enquiries regarding the creation of an offer that have been conveyed to us. We supply you with a textual and binding offer (e.g. via e-mail), which you can accept within a period of 5 days.
(5) The execution of the order and the sending of all the details necessitated by the conclusion of the contract take place via e-mail, in a partially-automated manner. Consequently, you have to ensure that the e-mail address that you have deposited with us is the correct one, and that the receipt of the respective e-mails is guaranteed. In particular, you have to ensure that the respective e-mails are not blocked by a SPAM filter.
(1) You provide us with the appropriate information, text or data necessary to customise the goods via the online ordering system or via E-mail without undue delay after concluding the contract. Any potential specifications that we may issue regarding file formats are to be borne in mind.
(2) You are obligated to ensure that you do not transfer data whose contents violate the rights of external parties (especially copyrights, rights to names and trademark rights) or break existing laws. You explicitly free us from any and all claims related to this matter that may be raised by external parties. This also applies to the costs associated with any legal representation that may become necessary in this regard.
(3) We do not check the transferred data for textual accuracy. In this respect, we assume no liability for errors.
(1) Insofar as repair-related services form the subject-matter of the contract, we are obligated to carry out the repair-related activities that follow from the service description. We shall provide these services in all conscience, either personally or through an external party.
(2) You are obligated to cooperate. In particular, you have to describe the defect affecting the device as extensively as possible and make the defective device available.
(3) You shall have to bear the costs of sending us the defective device.
(4) Insofar as no other period is specified in the respective offer or under the appropriate button, repairs, including assigning the device for shipping, shall be made within 5-7 days following receipt of the device to be mended (however only for advance payment after the time of your payment instruction).
(5) If you exercise your right of termination in accordance with Section 648(1) BGB, we can demand a flat-rate fee of 10% of the agreed fee, if performance has not yet started. However, this only applies to the statutory right of revocation if you first exercise your right of termination after the end of the revocation period. You will bear the burden of proof for demonstrating that we have incurred no or substantially less costs.
(1) You can only exercise a right of retention if the situation in question involves claims arising from the same contractual relationship.
(2) The goods remain our property until the purchase price is paid in full.
(3) If you are a businessman, the following conditions also apply:
a) We retain ownership of the goods until all the claims arising from the ongoing business relationship have been settled in full. The goods subject to retention of title may not be pledged or transferred by way of security before ownership of the said goods changes hands.
b) You can re-sell the goods within the framework of an orderly transaction. In this regard, you hereby cede all the claims amounting to the magnitude of the billing amount that accrue to you as a result of the re-selling operation to us, and we accept the cession. Furthermore, you are authorised to collect the claim in question. However, insofar as you do not discharge your payment obligations in an orderly fashion, we reserve the right to collect the claim ourselves.
c) In a situation involving the combination and amalgamation of the goods subject to retention of title, we acquire co-ownership of the newly-formed item. This co-ownership corresponds to the ratio that exists between the invoice value of the goods subject to retention of title and the other processed items at the time of processing.
d) If you make a request of this nature, we shall be obligated to release the securities that are due to us, to the extent that the realisable value of our securities exceeds the claim to be secured by more than 10%. We are responsible for selecting the securities to be released.
(1) The statutory warranty rights are applicable.
(2) As a consumer, you are requested to promptly check the product for completeness, visible defects and transport damage as soon as it is delivered, and promptly disclose your complaints to us and the shipping company in writing. Even if you do not comply with this request, it shall have no effect on your legal warranty claims.
(3) Insofar as you are a business, the following difference applies to the aforementioned warranty regulations:
a) It is understood that the details provided by us and the product description provided by the manufacturer are the only things that represent the properties and condition of the product in question. Other advertisements, blurbs and statements issued by the manufacturer are not considered to be representative of the properties and condition of the said product.
b) If the goods are found to be faulty, we shall reserve the right to repair the goods or deliver replacements. If the defect is not removed, you can demand a reduction in the price or withdraw from the contract at your discretion.
The defect removal is applicable after a failed second attempt, unless the circumstances prove otherwise, in particular due to the nature of the object and/or defect or other conditions. In case of repair, we must not bear the additional costs, which arise from the transfer of the item to a place other than the place of fulfilment, as far as the transfer does not correspond to the intended use of the item.
c) The warranty period amounts to a period of one year after delivery of the product. The reduction in time-limit does not apply:
– to damages culpably attributable to us arising from injury to life, limb or health and for other damages caused by wilful intent or gross negligence;
– insofar as we have wilfully concealed the defect or accepted a warranty for the quality of the goods;
– to goods which are used for a building in accordance with their normal use instructions and whose defects were caused by this;
– for statutory recourse claims, which you have against us in connection with warranty rights.
(1) German law shall apply. This choice of law only applies to customers if it does not result in the revocation of the protection guaranteed by the mandatory provisions of the law of the country in which the respective customer’s usual place of residence is located (benefit-of-the-doubt principle).
(2) If you are not a consumer, but a businessman, a legal entity under public law or an institutional fund governed by public law, our place of business is the place of jurisdiction as well as the place of fulfilment for all services that follow from the business relationships that exist with us. The same condition applies to situations in which you are not associated with a general place of jurisdiction in Germany or the EU, as well as situations in which the place of residence or the usual place of residence is not known at the time of commencement of proceedings. This has no bearing on the capacity to call upon the court associated with another place of jurisdiction.
(3) The provisions of the UN Convention on Contracts for the International Sale of Goods are explicitly inapplicable.
MANHART Performance GmbH & Co. KG
Uellendahler Straße 484
Telephone: +49(0)2 02 / 94 62 44 45
Alternative dispute resolution:
The European Commission provides a platform for the out-of-court resolution of disputes (ODR platform), which can be viewed under https://ec.europa.eu/odr.
The technical steps associated with the conclusion of the contract, the contract conclusion itself and the correction options are executed in accordance to the regulations “conclusion of the contract” in our standard business terms (part I.).
3.1 Contract language shall be English.
3.2 The complete text of the contract is not saved with us. Before the order is sent, via the online – shopping cart system the contract data can be printed out or electronically saved using the browser’s print function. After the order is received by us, the order data, the legally-mandated details related to distance selling contracts and the standard business terms are re-sent to you via e-mail.
3.3 You will be sent all contractual information within the framework of a binding offer in written form, via E-mail for example, for quotation requests outside of the online shopping basket system, which can be printed out or saved electronically in a secure manner.
The key features of the goods and/or services can be found in the respective quote.
5.1 The prices mentioned in the respective offers represent total prices, as do the shipping costs. They include all the price components, including all the incidental taxes.
5.2 The dispatch costs that are incurred are not included in the purchase price. They can be viewed by clicking the appropriate button on our website or in the respective quote, are shown separately over the course of the order transaction and must additionally be borne by you, insofar as free delivery is not confirmed.
5.3 If delivery is made to countries outside of the European Union, we may incur unreasonable additional costs, such as duties, taxes or money transfer fees (transfer or foreign exchange fees charged by the banks), which you must bear.
5.4 You must also bear the costs arising from money transfers in cases in which the delivery is made to an EU Member State, but the payment is initiated outside of the European Union.
5.5 The payment methods that are available to you are shown by clicking the appropriate button on our website or are disclosed in the respective quote.
5.6 Unless otherwise specified for the respective payment methods, the payment claims arising from the contract that has been concluded become payable immediately.
6.1 The delivery conditions, delivery date and existing supply restrictions, if applicable, can be found by clicking the appropriate button on our website or in the respective quote.
6.2 If you are a consumer, the following is statutorily regulated: The risk of the sold item accidentally being destroyed or degraded during shipping only passes over to you when the item in question is delivered, regardless of whether or not the shipping operation is insured. This condition does not apply if you have independently commissioned a transport company that has not been specified by us or a person who has otherwise been appointed to execute the shipping operation.
If you are a businessman, the delivery and shipping operations take place at your own risk.
Liability for defects is governed by the “Warranty” provisions in our General Terms and Conditions of Business (Part I).
8.1 Information on the termination of the contract and the terms and conditions of termination can be found in the section “Repair” section of our General Terms and Conditions of Business (Part I), and in the individual quotation.
These SBTs and customer details were created by the lawyers specialising in IT law who work for the Händlerbund, and are constantly checked for legal conformity. Händlerbund Management AG guarantees the legal security of the texts and assumes liability in case warnings are issued. More detailed information can be found on the following website: https://www.haendlerbund.de/agb-service.
Last update: 01-08-2022