Terms & Condition

General Terms and Conditions

1. Scope

(1) The following General Terms and Conditions (TERMS) apply to all – including future – sales, save as otherwise provided by a written agreement with the Customer.

(2) Our offer is directed exclusively at contractors (Section 14 German Civil Code [BGB]). Documentary evidence of the contractor’s commercial activity must be provided.

(3) The Customer’s General Terms and Conditions shall not become an integral part of the contract, even without express objection by us, regardless of whether they contradict or merely supplement our TERMS. The Customer acknowledges these TERMS by placing an order or through acceptance of the delivered products. If the Customer does not agree to this handling, it must expressly draw attention to this immediately in a separate letter. In such circumstances, we reserve the right to withdraw our offer or delivered articles, without any claims of any nature being able to be asserted against us.

(4) We reserve the right to make changes contingent on technical development and design changes in technical details and descriptions of the delivery item in offers, prospectuses and other information.

 

§ 2 Registration / Contract Conclusion / Preparation

(1) The illustration of our goods on the website does not constitute a binding offer to conclude a contract.  In order to enable the full use our website, a customer account must be created first. In the course of this process, the data required by ADC Blackfire for the support service will be requested.

We process your personal data in line with the General Data Protection Regulation. You can find out further details of this in our data protection declaration under https://www.blackfire.eu/info.php?txt=privacy

(2) The transmission of your personal data by you shall take place voluntarily (Article 6 (1) sentence 1 lit. a GDPR).

(3) The collection, processing and storage of your personal data shall take place exclusively in order to handle and execute your purchase order (Art. 6 (1) sentence 1 lit. b GDPR). We will not disclose your data to third parties, unless this required in order to handle and execute your purchase order, in particular the delivery. If your data is no longer required for the implementation of the business relationship, this will be deleted again, unless a deletion is precluded by mandatory legal specifications, such as e.g. tax retention periods under tax law. In these cases, deletion will take place after expiry of the respective periods.

(4) You agree to the collection, storage and processing for the above-mentioned reasons. You may revoke your agreement with effect for the future at any time. The revocation must be sent to ADC Blackfire Entertainment GmbH, Harkotstr.34, D-40880 Ratingen, Managing Director: Alexander Dubynski, alternatively to datenschutz@blackfire.eu. After receipt of the revocation, your data will be deleted, unless deletion is precluded by legal specifications, such as e.g. tax retention periods. In these cases, the deletion will take place after expiry of the respective periods. You can find detailed references to your rights according to the General Data Protection Regulations under https://www.blackfire.eu/info.php?txt=privacy

The registration process is only completed when the Customer registers with this data on the ADC Blackfire website for the first time. The password with which the Customer can access its personal area will be treated as strictly confidential and never disclosed to third parties. The Customer is responsible for taking suitable and adequate measures in order to prevent its passwords from being disclosed to third parties. A customer account may neither be transferred to another customer nor a third party.

 

§ 3 Contract Conclusion

(1) A contractual relationship with ADC Blackfire is concluded through an individual agreement (offer and acceptance) or via the Internet shop.

(2) The Customer makes a binding offer by ordering via the Internet or through an individual agreement. We reserve the right to decide whether we accept the offer. Acceptance will take place via order confirmation or by sending the goods.

The contractual partner for the Sales contract is:
ADC Blackfire Entertainment GmbH
Harkortstraße 34
D-40880 / Ratingen

(3) Pre-order

The Customer has the possibility to place pre-orders for articles not yet currently on the market. Pre-orders are binding. Experience shows that the release date announced by the manufacturer can be brought forward or postponed. All articles pre-ordered from ADC Blackfire must be sent to the Customer immediately after receipt of the delivery at ADC Blackfire’s premises. Shortly before the ordered article is transferred to the transport company, the Customer will receive shipping confirmation by E-mail. A contract between the ADC Blackfire and the Customer will be concluded through the shipment of the article.

 

§ 4 Delivery

(1) The scope of our delivery deadline in principle results exclusively from our order confirmation in writing or from the sending of the goods. Individual agreements with the Customer reached in a particular case shall have priority over these TERMS in any case. The content of such agreements shall be determined by a written contract or our confirmation in writing.

(2) The shipping period shall be in accordance with the availability of the goods.

(3) ADC Blackfire is entitled to deliver in instalments if this is reasonable. For deliveries in instalments, however, the Customer shall not incur any additional shipping costs.

(4) Unless expressly agreed otherwise, the place of performance for all payment and other contractual obligations shall be ADC Blackfire’s registered office. The place of performance for deliveries shall be the place of shipment. Unless a debt to be discharged at the creditor’s domicile [“Bringschuld”] was agreed, for all deliveries the transport risk shall be transferred to the Customer as soon as the goods have left the respective supplier’s works or ADC Blackfire’s warehouse or have been transferred to a means of transport, including our own means of transport, a carrier or freight forwarder on the works or warehouse site, and namely regardless of who bears the freight costs.

(5) Should claims for transport damage or losses exceptionally nonetheless be lodged against us, the Customer may only assert these if it fulfils its statutory or contractual cooperation duties. This includes, in particular before payment of the freight, that it has arranged for the recording of proper notices of damage and/or losses on the freight documents and freight invoices and proper recording of minutes, and that it has notified such damage or losses to us or the transport firms within a limitation period of 72 hours after receipt of the goods at the place of destination or, if the goods are not received, after receipt of the notice of readiness for shipment and has kept the goods along with the packaging ready for our inspection.

(6) Unforeseen events, such as force majeure, delivery or transport delays or labour disputes discharge us for the duration of the duty to deliver in due time, unless we are responsible for these. Delivery deadlines shall be extended by the duration of the disturbance. We will notify the Customer of such a disturbance without undue delay. If the disturbance lasts longer than two months, both Parties may withdraw from the contract. The Customer may not lodge claims for damages in this regard.

(7) No delivery will be made to PO Box addresses.

 

§ 5 Withdrawal

In the case of a lack of availability for the above-mentioned reasons, ADC Blackfire is entitled to withdraw from the Contract. ADC Blackfire in this case undertakes to inform the Customer without undue delay about the lack of availability and reimburse it for any consideration already provided without undue delay.

 

§ 6 Payments

(1) All prices are quoted plus statutory VAT. In addition, the costs for postage and packaging shall be incurred separately, unless collection by the Customer at ADC Blackfire’s premises in Ratingen is agreed.

(2) Payments must be made through bank transfer according to the individual payment terms and are considered to be made upon receipt of payment.

(3) If it becomes evident after the conclusion of the contract that our payment claim is jeopardised through the Customer’s inability to perform, we shall be entitled to refuse the delivery until the Customer provides consideration or a collateral is provided for it. If we have set an appropriate period for this purpose without result, we shall be entitled to withdraw from the contract.

(4) ADC Blackfire reserves the right to grant the Customer a cash discount for payment within 10 days after receipt of the bill, but is not obliged to. In addition, ADC Blackfire reserves the right to grant a sales discount for longer periods of payment in particular cases, but is not obliged to. A sales discount agreement shall be agreed in writing, in consultation with the Customer.

(5) Unless agreed otherwise regarding the due date, the Customer shall be considered to be in default of payment if the payment is not received by ADC Blackfire within two weeks after the billing date. In case of default of payment, interest in the amount of 9 percentage points above the European Central Bank’s base interest rate shall be charged. If the Customer is currently in default of payment, ADC Blackfire reserves the right to bill for dunning charges in the amount of € 2.50. This is without prejudice to the right to assert further damage. The Customer is entitled to provide documentary evidence that ADC Blackfire has not incurred any or has incurred less serious damage.

(6) Bills may be paid using the SEPA direct debit procedure. For this purpose, the purchaser grants ADC Blackfire a corresponding mandate (SEPA core mandate or, where possible, a SEPA business mandate). If bills for goods and services are paid using the SEPA basic direct debit procedure, the Customer shall receive provisional information regarding the direct debit transfer. The advance notice period for B2B-SEPA direct debit payments shall be reduced to 1 day. For CORE (standard direct debit) payments, the period in the case of a periodic direct debit (FRST) / one-off direct debit (OOFF) shall be reduced to 5 days and to 2 days for the recurrent direct debit (RCUR). The purchaser warrants that sufficient money is available on the account. Costs arising through failure to collect or withdrawal of the payment of the direct debit, shall be borne by the purchaser, unless the failure to collect or the withdrawal of the payment is attributable to ADC Blackfire.

 

§ 7 Warranty

(1) The Customer must inspect each delivery carefully and completely immediately after receipt. Recognisable defects or shortages during the inspection must be notified in writing within 72 hours after receipt of the goods. Otherwise, the entire delivery will be considered as approved in this respect. If a defect that was not recognisable during the initial inspection becomes evident later, the Customer must inform us in writing without undue delay. In particular, the deficiency asserted must be described in detail and in particular it must be notified in what manner and under what circumstances this deficiency has occurred.

(2) In the event of defects, we may remedy the defect or deliver a replacement, at our choice. We are liable in accordance with this clause as well as in other respects with the statutory regulations within a period of 12 months, starting with the delivery, for the freedom from defects of the goods at the time of the transfer of the risk. We are entitled to make the supplementary performance conditional on the Customer paying the purchase price due. However, the Customer is entitled to retain a portion of the purchase price commensurate with the defect.

(3) In the cases in which – for our Customer as well – no consumer good purchase occurs within the supply chain, the regulations of Sections 474-479 German Civil Code [BGB] shall not apply.

(4) We are not liable in the case of deficiencies that are not caused by a defect, but by improper handling, upkeep, or through the deployment of unqualified personnel on the part of the Customer. This shall apply accordingly if a deficiency due to natural wear and tear occurs.

(5) For the shipment of the goods notified as being defective, the Customer must send back the documents (order confirmation, delivery note, bill and similar) under which its entitlement to assert a warranty claim arises. The Customer must send the goods notified as being defective back to us in their original packaging or, should this no longer be available, in equally secure packaging.

In all cases, the Customer shall bear the transport risk for goods sent and returned to us. However, we will bear the transport costs arising for goods sent and returned to us as a result of a justified notice of defects.

(6) The Customer only has a right to withdraw from the contract or reduce the purchase price if the breach of duty associated with the freedom from defects of the goods is material, it has previously requested us in writing to repair the goods or deliver a replacement within an appropriate period and we have not performed within this period. A right to withdraw from the contract or reduce the purchase price shall only exist if the supplementary performance is without result on two occasions. Section 323 (2) to (6) BGB shall remain unaffected in other respects. We reserve the right to assert compensation for use in the case of the withdrawal from the contract.

(7) In the event of the Customer’s unjustified cancellation of the contract, we are entitled to request 25% of the gross order value as lump sum damages (damages in lieu of performance). The Customer reserves the right to provide documentary evidence that no or less damage has arisen.

 

§ 8 Retention of Title

(1) We will retain title to the delivered goods (goods subject to retention of title) until final payment of all receivables which have arisen or are yet to arise based on the Sales contract. If the goods are currently located in the Federal Republic of Germany, title shall be transferred only upon payment of all receivables which have arisen or are yet to arise from the business relationship with the Customer. For several receivables or a current account, the retention of title is considered to be security for the balance claim, even if individual deliveries of goods have already been paid.

(2) The Customer is entitled to resell the goods in the normal course of business, but not to pledge them, assign them as security or dispose of them exceptionally otherwise. The receivables from reselling are already now assigned to us by mutual agreement. The Customer may collect them. The Customer must permit us to collect the receivables if it does not meet its obligations to us or if it faces financial difficulties. The Customer must support us comprehensively in the collection. For this purpose, it must provide us with all necessary information and transfer all required documents to us. If the goods subject to retention of title are further processed together with other goods, the agreed assignment in advance shall apply only in the amount of the value of the goods subject to retention of title.

(3) The Customer must insure the goods subject to retention of title appropriately against all usual risks, store them separately, treat them with care and identify them at our request. Claims arising against the insurance company in the event of damage are already now assigned to us by mutual agreement in the amount of the value of the goods subject to retention of title.

(4) Pledges of the goods subject to retention of title or any other access by third parties must be notified to us in writing without undue delay, indicating the name and the address of the pledgor or the third party.

(5) If the Customer culpably defaults in payment or it culpably does not meet material contractual obligations, we are entitled to withdraw from the contract in accordance with the statutory obligations or/and request that the goods be returned based on the retention of title. The request that the goods be returned shall not simultaneously comprise the declaration of the withdrawal; rather, we are entitled merely to request that the goods are returned and we reserve the right to withdraw from the contract. If the Customer does not pay the purchase price due, we may only assert these rights if we have previously set the Customer an appropriate period for the payment without result or the setting of such a period is indispensable in accordance with the statutory regulations. The Customer must tolerate the removal and allow others to enter its offices and business premises for this purpose. If we have set a period with the threat of rejection and have declared withdrawal from the contract and we subsequently dispose of the goods, the Customer is liable for the difference between the purchase price and the realisation proceeds. In addition, it shall bear the costs of the return.

(6) If the realisable value of the collateral exceeds our receivables by more than 10%, we shall release a collateral at our choice at the Customer’s request.

(7) In the event of actions based on the retention of title, we shall be free to claim against the foreign Customer at its home court and subject to its home law. For the latter case, the regulation on the retention of title that approximates as closely as possible in its economic impact to the retention of title agreed here shall be considered to apply.

 

§ 9 Liability

(1) Our liability – for any legal reason whatever – is restricted to damage that we or our legal representatives or vicarious agents have brought about intentionally, with gross negligence or with inadvertent negligence in the event of a breach of obligations material to the fulfilment of the contractual purpose, i.e. obligations whose fulfilment enables proper implementation of the contract in the first place and the observance of which the contracting party regularly trusts and is entitled to expect.

(2) In cases of inadvertent breach of material contractual obligations, our liability shall be restricted in terms of its amount to the typical damage in the case of comparable transactions of this kind that were foreseeable upon the conclusion of the contract or no later than at the time of committing the breach of the obligation.

(3) The above-mentioned regulations shall be without prejudice to claims for damages under the German Product Liability Act [Produkthaftungsgesetz] and for injury to life, limb and health. In addition, the above-mentioned restrictions of liability shall not apply if we have maliciously concealed a defect or assumed a guarantee of the quality of goods.

 

§ 10 Expiry by Limitation

(1) Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims based on defects of quality or defects in title shall be one year from delivery. If acceptance is agreed, the expiry by limitation shall begin upon the acceptance.

(2) The above-mentioned limitation periods under the sale of goods law also apply for the purchaser’s contractual and non-contractual claims for damages that are based on a defect of the goods, unless the application of the regular statutory expiry by limitation (Sections 195, 199 BGB) would result in a shorter limitation period in a particular case. The limitation periods of the German Product Liability Law [Produkthaftungsgesetz] shall remain unaffected in any case. Otherwise, exclusively the statutory limitations periods shall apply for the Customer’s claims for damages in accordance with No. 8 above.

(3) Otherwise, the statutory regulations shall apply.

 

§ 11 Contractual Language

Unless expressly agreed otherwise, the contractual language shall be German.

 

§ 12 Applicable Law

The law of the Federal Republic of Germany shall apply to the exclusion of UN Sales Law.

The EU Commission offers the possibility to resolve disputes online on an online platform it operates. This platform may be accessed under https://webgate.ec.europa.eu/odr/. We are neither obliged nor prepared to participate in a dispute resolution procedure before an arbitration board.

The exclusive – including international – venue for all disputes directly or indirectly arising from the contractual relationship shall be our registered office in Essen, Germany. However, we are also entitled to bring an action at the Customer’s general place of jurisdiction.

 

§ 13 Miscellaneous

Should individual provisions of these General Terms and Conditions be or become invalid, in whole or in part, this shall not affect the validity of the other provisions. Cancelled provisions must be replaced by others that are legally valid and approximate as closely as possible to the economic objective of the invalid clause.

Our Customer’s rights under the contract are not transferable.

The set-off against counterclaims other than those that are undisputed or are confirmed by final court decision is not permitted. Our Customer is only entitled to assert a right of retention based on undisputed claims or claims confirmed by final court decisions. In the event of defects of the delivery, the Customer’s reciprocal rights shall remain unaffected.

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