(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 self-employed 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 self-employed 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.
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.
(1) MHP’s obligation to perform is fulfilled with the provision of the goods at MHP’s business premises (obligation to collect ex works). The buyer is obligated to take delivery of the purchased item within 8 days from the receipt of the notification of availability.
(2) If the goods are shipped to the customer at their request, the risk of accidental loss or deterioration of the goods passes to the customer upon dispatch to the customer, but at the latest upon leaving the factory. This applies regardless of whether the shipment of the goods is made from the place of performance and who bears the freight costs.
(3) The customer must promptly inspect the goods for transport damages upon delivery and immediately notify MHP of any damages or losses.
(4) If the customer violates the duties specified in paragraph 3, the delivered goods are considered accepted.
(5) If a formal acceptance is agreed upon, it must be carried out within 5 working days from the notification of completion; it is deemed granted if the customer does not raise objections against the acceptance within these five working days.
(6) In the event of non-acceptance, the seller can exercise his legal rights. If the seller demands compensation, it amounts to 15% of the gross purchase price. The compensation can be set higher or lower if the seller demonstrates a higher damage or the buyer proves that little or no damage has occurred.
(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 the statute of limitation of any claims against MHP is subject to the law.
(1) Definition
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 the 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.
Last update: 01-08-2022