Terms & Condition (as of October 16th 2015)
Note: This translation is provided to the purpose of non-German speaking customers. The official German version (switch languages above) is legally binding.
Section 1 General
a) Scope of application
These General Terms and Conditions of Business apply to all commercial relations between ADC Blackfire Entertainment GmbH, Harkortstraße 34, 40880 Ratingen, represented by its Managing Director: Mr. Alexander Dubynski (hereinafter referred to as: ADC Blackfire) and customers, in the version valid at the time when the contract is concluded. The customer's General Terms and Conditions of Business which deviate from our own are hereby expressly rejected.
b) Contractual agreement
The language of the contract is German. Customers in the sense of these General Terms and Conditions of Business are exclusively entrepreneurs according to section 14 of the German Civil Code (BGB).
Section 2 Registration/contract conclusion/preparation
Presentation of the assortment in the Internet shop of ADC Blackfire is non-binding and not subject to obligation. In order to use the complete scope of this website, it is initially necessary to create a customer account. As part of this process, the data required by ADC Blackfire for performance of service is requested. The entries are confirmed by clicking the "Register" button. In response to this, the customer receives a confirmation e-mail containing the information required for logging in. The registration process is only completed when the customer logs onto the ADC Blackfire website for the first time using this data. The password that allows the customer to access his/her personal area shall be handled in the strictest confidence, and shall never be communicated to third parties. The customer is responsible for taking suitable and appropriate measures to prevent his/her password becoming known to third parties. A customer account cannot be transferred to other customers or third parties.
b) Contract conclusion
A contractual relationship with ADC Blackfire is established by individual agreement (offer and acceptance) or via the Internet shop of ADC Blackfire.
The ordering procedure via this website comprises four steps in total. In the first step, the customer selects the required goods. In the second step, he/she enters his/her data including invoice address and delivery address, if different from the invoice address, unless this information has already been stored in his/her customer account. In the third step, he/she selects the payment method. In the fourth step, the customer has the opportunity to check all the information again (e.g. name, address, payment method, ordered articles) and to correct any possible input errors before confirming his/her purchase order by clicking the "Submit binding purchase order" button. By placing a purchase order, the customer makes a binding declaration of its contract offer. ADC Blackfire shall confirm receipt of the customer's purchase order without delay. The confirmation of receipt does not itself represent binding acceptance of the purchase order. Within two days following receipt of the purchase order, ADC Blackfire is entitled to make binding acceptance of the contract offer contained in the purchase order by e-mail, fax, telephone, post or by sending the merchandise. With acceptance, a contract comes about between ADC Blackfire and the customer.
c) Preliminary order
The customer has the opportunity to place preliminary orders for articles that are not yet on the market. Preliminary orders are binding. Experience shows that the date of release announced by the manufacturer may be brought forward or be postponed. All articles preordered from ADC Blackfire shall be sent to the customer immediately as soon as ADC Blackfire receives delivery. Shortly before the ordered article is handed over to the transport company, the customer shall be sent a shipping confirmation via e-mail. With dispatch of the article, a contract comes about between ADC Blackfire and the customer.
d) Storing the text of the contract
The text of the contract is stored by ADC Blackfire and is sent to the customer following dispatch of his/her purchase order, along with the present General Terms and Conditions of Business and customer information in text form (e.g. e-mail, fax or by post). However, the customer can no longer call up the text of the contract from the seller's Internet site following dispatch of his/her purchase order. The customer can use the print function of his/her browser to print out the authoritative website with the text of the contract.
Section 3 Delivery
a) Partial deliveries
ADC Blackfire is entitled to make partial deliveries, if it is reasonable to expect the customer to accept this. However, partial deliveries do not incur any additional shipping costs for the customer.
b) Delays in delivery and performance
ADC Blackfire shall not be responsible for delays in delivery and performance due to force majeure, unusual and unforeseeable events which cannot be prevented by ADC Blackfire, even through the exercise of extreme diligence (including in particular strikes, official or judicial orders and cases of incorrect or inappropriate delivery to ADC Blackfire itself in spite of a corresponding hedging transaction). Such situations entitle ADC Blackfire to postpone the delivery for the duration of the event which represents an obstacle.
In the event of lack of availability for the aforementioned reasons, ADC Blackfire shall be entitled to withdraw from the contract. ADC Blackfire undertakes in this case to inform the customer without delay about the lack of availability, and to refund any services in return which may have already been provided, without delay.
d) Exclusion from delivery
No deliveries are made to PO box addresses.
e) Delayed acceptance
If the customer delays acceptance of the ordered merchandise, ADC Blackfire shall be entitled, after having set an appropriate period of grace, to withdraw from the contract and claim compensation in damages due to delay or non-performance. During the delay in acceptance, the customer bears the risk of accidental loss or of accidental deterioration.
f) Time of performance
Unless expressly agreed otherwise, the delivery by ADC Blackfire shall be made within 5 days. The period for the delivery starts in the case of payment in advance on the day after the payment instruction is given to the transferring financial institution or, in the case of payment on delivery, the day after contract conclusion. The period ends on the fifth day after that. If the last day of the period is a Saturday, Sunday or an official public holiday recognized at the place of delivery, the period shall finish on the next working day.
Section 4 Payment
a) Prices and shipping costs
All prices are exclusive of VAT. In addition, there are also separately indicated costs for postage and packaging, unless collection by the customer from the business premises of ADC Blackfire in Duisburg is agreed.
b) Discount agreement
ADC Blackfire reserves the right to grant the customer a discount for payment within 10 days following receipt of invoice, but is not obliged to do so. Moreover, ADC Blackfire reserves the right to grant a discount for longer payment targets in individual cases, but it not obliged to do so. A discount agreement is made in writing, subject to consultation with the customer.
c) Payment default
Unless agreed otherwise with regard to the due date, the customer shall be regarded as in payment default if the payment is not received by ADC Blackfire within two weeks of the date of invoice. In case of payment default, interest shall be charged at 9 percentage points above the base interest rate of the European Central Bank. If the customer is in default in his/her payments, ADC Blackfire reserves the right to invoice dunning charges amounting to €2.50. The right to claim any further damages shall remain unaffected by this. The customer shall be entitled to demonstrate that ADC Blackfire has experienced no loss or a less serious loss.
d Right of retention
The customer shall only be entitled to assert a right of retention over those counter-claims which are due and are based on the same legal relationship as the customer's obligation.
e) SEPA payments and pre-notification
Invoices can be paid using the SEPA Direct Debit scheme. For this purpose, the purchaser issues ADC Blackfire with a corresponding mandate (SEPA Core mandate or if possible a SEPA Business mandate). If invoices for merchandise and services are paid using the SEPA Core Direct Debit scheme or the Business Direct Debit scheme, the customer shall receive preliminary information about the direct debit transfer. The period of the pre-notification for B2B SEPA direct debit payments is shortened to 1 day. In CORE (the standard direct debit), when a first direct debit (FRST)/one-off direct debit (OOFF) is made, the period shall be shortened to 5 days and to 2 days for the recurrent direct debit (RCUR). The purchaser assures that there will be sufficient funds in the account. Costs arising from non-collection or payment reversal of the direct debit shall be borne by the purchaser, unless the non-collection or payment reversal is attributable to ADC Blackfire.
Section 5 Extended retention of title
The merchandise, works and materials supplied by ADC Blackfire shall remain the property of ADC Blackfire until all current and future receivables arising from the commercial relationship have been settled in full. The customer shall handle the items subject to the retention of title with care at all times. The customer assigns a claim or replacement that he/she receives due to the damage, destruction or loss of these items to ADC Blackfire. Unless agreed otherwise below, the customer is not entitled to sell, give away, pledge or offer as collateral the items that are supplied to him/her subject to retention of title.
b) Garnishment and other impairments
If the item subject to retention of title is garnished or otherwise impaired by third parties, the customer shall inform ADC Blackfire without delay so that a claim can be asserted in accordance with section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to pay the court and out-of-court costs of a case according to section 771 ZPO, the customer shall be liable to ADC Blackfire for the resulting shortfall.
The customer is entitled to resell the merchandise subject to retention of title in the ordinary course of trade. The purchaser’s claims arising from the resale of the merchandise subject to retention of title shall be herewith transferred to ADC Blackfire, in the amount of the agreed final invoice value (including VAT). This assignment applies irrespective of whether the purchased item has been resold without or with processing. The customer remains entitled to collect the receivable even following its assignment. ADC Blackfire's entitlement to collect the receivable itself remains unaffected by this. However, ADC Blackfire will not attempt to collect the receivable as long as the customer discharges its payment obligations from the collected revenues, is not in payment default and, in particular, no request for the opening of insolvency proceedings has been submitted and there has been no cessation of payment.
d) Reconfiguration, processing
Processing or reconfiguration of the purchased item is always carried out by the customer in the name of and on behalf of ADC Blackfire. In this case, the customer's expectant rights over the purchased item continue in its reconfigured status. If the purchased item is processed involving other items that do not belong to ADC Blackfire, ADC Blackfire acquires joint ownership over the new item in proportion to the objective value of the item purchased from ADC Blackfire as against the other processed items at the time of processing. The same applies in the event of blending. In the event that the blending takes place in such a way that the customer's item is to be regarded as the principal item, it is regarded as agreed that the customer shall transfer proportionate joint ownership to ADC Blackfire, and shall safeguard the resulting sole ownership or joint ownership for ADC Blackfire. In order to secure the receivables due from the customer, the customer shall also assign those receivables to ADC Blackfire to which the customer is entitled to receive from a third party as a result of the merchandise subject to retention of title having been connected to an item of real estate; ADC Blackfire accepts this assignment already at this stage.
If the customer acts in contravention of the contract, in particular in the event of payment default but also if insolvency proceedings are applied for regarding the customer's assets, then ADC Blackfire shall be entitled to redeem the item. In this case, redeeming the item does not represent a withdrawal from the contract, unless ADC Blackfire declares such a withdrawal expressly in writing.
f) Release of collateral
If the value of the collateral exceeds the value of the collateralized receivables by more than 15 percent, ADC Blackfire shall be obliged to release collateral at the customer's request.
Section 6 Warranty
a) Warranty claim
The statutory warranty rights apply. A warranty claim can only arise with regard to the appearance and workmanship of the merchandise; reasonable deviations in the aesthetic properties of the merchandise are not subject to the warranty claim.
b) Rights in the event of insignificant defects
In the event that an insignificant defect exists, the customer shall merely be entitled to an appropriate reduction in the purchase price, excluding the right of withdrawal.
c) Compensation for defects
No warranty cover is offered for damage attributable to incorrect treatment or use of the merchandise. Damages for defects in the merchandise shall only be paid by ADC Blackfire in the event of deliberate or gross negligence. This exclusion does not apply to liability for damages arising from injury to life, limb and health. Also, the regulations of product liability legislation are unaffected by the exclusion from liability.
In a deviation from the statutory warranty regulations, the following provisions apply with regard to companies: In the event of a defect, ADC Blackfire shall at its own discretion provide supplementary performance in the form of remedy of defect or new delivery. In this case, the risk of accidental loss or of accidental deterioration of the item is transferred at the point of handover to the person entrusted with transport. Warranty claims expire within one year after the transfer of risk determined in this way.
e) Obligation to notify defects
Entrepreneurs shall give immediate written notice of obviously apparent defects; otherwise, the right to assert the warranty claim shall be excluded. Timely dispatch is sufficient for the deadline to be met. The entrepreneur is entirely responsible for demonstrating that all the preconditions for making the claim have been met, in particular with regard to the defect itself, the time when the defect was observed and the timely nature of the notification of defects.
f) Warranty for used merchandise
Used merchandise is excluded from the warranty. This does not exclude the liability for damages arising from injury to life, limb and health. Also, the regulations of product liability legislation are unaffected by this.
Section 7 Liability
a) Exclusion from liability
ADC Blackfire as well as its legal representatives and vicarious agents are only liable in the event of deliberate or gross negligence. In the event that significant contractual obligations (consequently such obligations which it is particularly important to comply with in order to achieve the purpose of the contract) are affected, liability also applies to slight negligence. In this case, the liability is restricted to foreseeable, direct and average damage that is typical of the contract. In the event of a grossly negligent infringement against non-significant contractual obligations, ADC Blackfire shall only be liable towards entrepreneurs in the amount of the foreseeable, direct and average damage that is typical of the contract.
b) Liability exclusion
The present liability exclusion does not apply to liability for damages arising from injury to life, limb and health. Also, the regulations of product liability legislation are unaffected by the exclusion from liability.
Section 8 Concluding provisions
a) Court of jurisdiction
The exclusive court of jurisdiction for all legal disputes under this contract shall be the registered office of ADC Blackfire in Duisburg, Germany, if the customer is a merchant, a legal entity under public law or a public-law special fund, or if the customer does not have a court of jurisdiction in the Federal Republic of Germany.
b) Choice of law
German law is agreed, to the exclusion of the UN Convention on the International Sale of Goods, unless there are compulsory legal provisions which require the customer's right of domicile.
c) Severability clause
The invalidity of individual provisions shall not affect the applicability of the other General Terms and Conditions of Business.