Terms and Conditions
General Terms and Conditions of Business of MERCHCOWBOY Online-Shops, which are operated by (hereinafter referred to as “MERCHCOWBOY / MERCHCOWBOY Online Shops“).MERCHCOWBOY GmbH & Co. KG,
§ 1 General information, services and goods on offer, newsletter
- MERCHCOWBOY operates online shops under the domains https://www.merchcowboy.com and https://merchandmusic.de. On the aforementioned websites, MERCHCOWBOY offers its customers products with names, illustrations and other promotionally effective identification of an artist/a group (hereinafter together referred to as “Merchandising products”) as well as (image) sound recordings in the form of data media and concert tickets for purchasing via the Internet. Alongside the purchase of prefabricated Merchandising products, customers are also given the possibility of having Merchandising products produced or finished according to individual optical wishes and/or requirements. All told, the aforementioned goods of both online shops are also generally referred to as “Goods”.
In the online shop: https://merchandmusic.de finished goods including tickets and data media are exclusively offered for sale.
In the online shop: https://www.merchcowboy.com customers have the possibility of ordering merchandising products according to customers’ specifications under the title: “Order Merch“. http://www.merchcowboy.com also provides the possibility of visiting our sales shops designed with our business partners within the framework of the so-called “shop in shop systems“ under the title: “Merch-Store“ (hereinafter referred to as: “Satellite Shops”). To clarify, it is stated that provisions stated or advertised for in these satellite shops deviating from the present terms do not possess any validity.
The following terms apply to both online shops of MERCHCOWBOY, with a differentiation being made at the places in question, to the extent necessary.
- Customers in the sense of our General Terms and Conditions of Business (hereinafter referred to as “Terms”) are both consumers and also entrepreneurs. Consumers in the sense of our General Terms and Conditions of Business are natural entities with whom a business relationship is commenced without a commercial or an independent vocational activity being ascribed to them. Entrepreneurs in the sense of our General Terms and Conditions of Business are natural or legal entities or legally capable associations of persons with whom a business relationship is commenced acting in the exercising of a commercial or an independent vocational activity.
- If you register for our “newsletter” called “Postkutsche” (mail-coach), you will be informed about news, specials, offers and price reductions each month. Your email address only is required for this purpose. You can de-register from this newsletter at any time without costs other than the transmission costs according to the basic tariffs originating. You will find a matching de-registration function within the framework of each and every newsletter.
§ 2 Scope of applicability of Terms, ticket sales
- These terms apply to all business relationships between MERCHCOWBOY and the customer in the version currently valid at the time of conclusion of the contract.
- Customer’s contradicting or deviating terms shall not be acknowledged unless MERCHCOWBOY has approved this in writing in the individual case.
- MERCHCOWBOY has been commissioned and authorised by concert organisers (hereinafter referred to as “Organisers”) to organise the contract for the attendance of the event by the sale of hard tickets on their behalf. MERCHCOWBOY is entitled to collect the entrance fee in its own name, albeit for Organiser’s account, and to forward it to the latter. The hard tickets are non-personalised, albeit with a registered serial number and thus copy-protected, bearer tickets. Replacement of lost tickets has therefore been ruled out. As a matter of principle, there shall no claim to return of hard tickets, unless the event is cancelled. We shall publish who the hard tickets are to be returned to within the framework of our shops following cancellation. The hard ticket shall entitle the bearer towards the local organiser stated to access to the event stated. Commercial resale of hard tickets has been forbidden. Dangerous objects and disturbing devices may not be taken to the event. Recording appliances suitable for sound/image recordings may not be taken to the event with the exception of mobile telephones; under no circumstances may recording devices, including mobile telephones, be operated for recording purposes. Apart from this, the General Terms and Conditions of Business of the local organiser and the house rules of the location of the event shall apply.
§ 3 Ordering process and conclusion of a contract for prefabricated Goods / manufactured according to customer’s specification
As the first step in the ordering process, you can log on by entering your email address and the password chosen by you in connection with previous orders via the “User account” button at the top right of the page. Your stated name will then appear, and you can access your account. Otherwise, please register later on in the course of the ordering process.
- Ordering of prefabricated goods
- The portrayal of the ranges of goods in the MERCHCOWBOY online shops does not represent a quotation in the sense of § 145 German Civil Code. The essential features of the goods in question can be found with the product itself or under description/further information. Please feel free to ask further questions about the goods. The offer is subject to change without notice and non-binding.
- The goods selected by you are placed in the shopping trolley. As soon as you have decided in favour of an article, you can get it ready for ordering. You are guided through the ordering process step by step. For this, you go through the steps: “How would you like to go to the till?” (as a guest or registration), invoice address, delivery address, form of dispatch, payment information and finally you are given another order overview with possibility of correction. In the first order step, you can also log in by input of your e-mail address and the password you have chosen in previous orders. In order to finish the order process, you must click on a specifically identified button “Now order at a charge”. You are responsible for correct input of your personal data. Customers who have not yet turned 18 require the approval of a parent/guardian for ordering the goods. Particulars which must be provided in the ordering process are indicated as such.
- After you have placed your order, you are given a technical confirmation of receipt of your order on the website and by e-mail. In this automatic confirmation of receipt of your order on the website and by e-mail, you will see a reproduction of your order and our General Terms and Conditions of Business with the revocation instructions in a textual form as an annex to the mail. This confirmation of receipt of your order does not yet mean a declaration of acceptance of the order, as we examine it first. Please check the confirmation for obvious spelling and calculation errors and for deviations between order, confirmation and delivery. You are obliged to notify us of such discrepancies without delay. In cases of prefabricated goods, MERCHCOWBOY is entitled to accept the offer made by you within 2 weeks. The purchase contract is concluded with the invoice, albeit no later than when we accept your order by delivery of the goods sold or by notification of delivery within the delivery period stated.
- Ordering goods to be produced according to customers’ specifications
To the extent that you want to have a merchandising product manufactured according to your own requirements, please contact us under email@example.com. You can also simply use our online offer form, which you will find on the starting page under the title “Order Merch”, and can fill in individual requirements accordingly there under the button “Request a quotation”. On the starting page, you will also find more information about the printing and finishing service which we offer as a matter of principle and the form in which the requirements for the printing and finishing service have to be provided to us under the title “Order info”. For goods to be manufactured according to customers’ specifications, you will receive an individual written quotation based on the quotation requested by you, which is binding for us for a period of 14 days. Within this period, a contract for the manufacture of the goods to be manufactured according to customers’ specifications comes about following a written confirmation on your part (at least by e-mail for documentation purposes). As a matter of principle, we only implement orders for manufacture of merchandising products according to customers’ specifications when the graphics, texts etc. underlying the orders are sent to us in writing or digitally. In addition, we provide a so-called “preview shirt”, where the customer can produce a digital preview of the goods to be produced according to customers’ specifications with the help of an image processing programme. The customer placing an order for merchandising products according to customers’ specifications is given a proof copy for control before approval for printing and is obliged to approve it or to notify reasons for rejection of the approval in writing.
- Taking note of the Terms, submission of quotation
Before you send your order or commission sold goods according to customers’ specifications, you must confirm that you have taken note of our Terms and the revocation instructions and have accepted them, or you have the opportunity of taking note of and downloading or printing our Terms. By placing an order to the MERCHCOWBOY online shops within the framework of the order process or “requesting a quotation” for goods to be produced according to customers’ specifications, you make an offer in the sense of §§ 145 et seq., German Civil Code, for conclusion of a purchase or work contract with the MERCHCOWBOY online shops.
- Acceptance, rejection of acceptance, unavailability of goods
We further reserve the right for the individual case in question not to accept the order if a certain number of merchandising products or tickets ordered and already prefabricated is exceeded, in order to avoid large quantities of goods being purchased from us and then resold. In the event of unavailability of the ordered goods, Customer shall be informed without delay. Considerations already received shall be reimbursed as quickly as possible.
- Reservation of delivery
The contract shall be concluded under the reservation that we are supplied properly and in good time, unless we are answerable for the improper or unpunctual delivery.
In some cases, Merchcowboy offers a blog as part of the shop-in-shop systems. The customer warrants that content placed on the blog (generally called “Content”) does not violate any personality, trademark or competition rights or any copyright. The customer further warrants that no Content is of a violence-glorifying, pornographic or xenophobic nature. The customer shall indemnify Merchcowboy on Merchcowboy’s first demand against all claims of third parties asserting the violation of any rights of the aforesaid kind and/or if and insofar as he/she violates any of the warranties given. This shall include all direct and indirect loss or damage and expenses as well as all costs of bringing and defending legal action. Merchcowboy has the right, but not the duty, to check Content for legality. However, the customer also undertakes to furnish proof of legality of the Content and/or to allow the Content to be checked for legality by third parties. If any concerns exist concerning the legality or suitability of Content supplied, Merchcowboy may desist from using or publishing it. The customer has no claim to the publication of Content. The customer agrees to assign to Merchcowboy all rights to the Content as may be necessary for implementation of the website or promotion of the website, without restriction as to place or time.
§ 4 Price components and payment terms, kinds of payment, maturity, invoice
- All prices stated on the websites of the MERCHCOWBOY online shops contain the German value added tax of 19% valid by law and include the costs of packaging, as stated in the quotation in question. All the price components are stated individually and summarised once more directly underneath the order button. For concert tickets, the statutory value added tax of 7% is due for payment. All product prices are also to be understood exclusive of dispatch costs, unless “incl.(uding) costs of dispatch” is stated in our special offers. An overview of the shipping costs can be obtained by clicking on the link in the form of a button located directly beside the goods or the button at the bottom left of the web page. The prices at the time of Customer’s order shall apply. The term of validity of limited offers shall be displayed at the corresponding points on the websites; these prices shall apply as long as stocks last.
- The purchase price shall be due for payment upon placement of the order. The payment is handled by the “Payone“ http://www.payone.de/ and “Concardis“ https://www.concardis.de/ service companies commissioned by us. Payment by the customer can be cash in advance, PayPal, credit card, direct transfer and Giropay. Our PayPal account is: firstname.lastname@example.org. Deduction of discount is only allowed if it is permitted to you in writing.
- If you choose the “advance payment” mode of payment, we demand receipt of the payment of the goods plus costs of dispatch before we dispatch the goods. If we have still not received any payment from you 5 working days after receipt of your order, your order is cancelled.
- With each delivery of goods, you shall receive a detailed invoice with a statement of the value added tax. In addition, this invoice is valid as a proof of purchase or order and should therefore be kept carefully.
- Customer shall also be obliged to pay for orders which have been caused by minors and other co-users and have been placed via its access. This shall also apply in the event of misuse unless Customer proves that culpability cannot be ascribed to it.
§ 5 Dispatch and packaging costs, insured dispatch
- As part of the price statement (with the exception of special offers marked accordingly, if applicable) there is the addition: “plus costs of dispatch”. In this context, the term “costs of dispatch” has been designed as a button or link from which you reach an overview of the costs of dispatch. The precise costs of dispatch are notified to you in the course of the order process before it is concluded. To the extent not regulated there to the contrary, we charge a lump sum of € 5.99 for an order within Germany. If not regulated to the contrary, the lump-sum for the EU member states (Belgium, Netherlands and Austria) amounts to € 9.99, for the states (Bulgaria, Denmark, Estonia, Finland, France, Great Britain, Greece, Ireland, Italy, Croatia, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Sweden, Switzerland, Slovakia, Slovenia, Spain, Czech Republic, Hungary, Cyprus) it amounts to 15,99€, for the states (Andorra, Albania, Bosnia-Herzegovina, Iceland, Liechtenstein, Macedonia, Montrenegro, Norway, Serbia, Vatican City, Belarus) it amounts to 19,99€, for USA an the rest of the world it amounts to 35,99€.
- Our dispatch partner within Germany is DHL. Our national goods consignments are insured up to € 500.-, and you can also trace our consignments.
- For dispatch to countries outside the EU, our dispatch partner is DHL. Then, Customer shall bear all possible customs duties as well as import and export fees.
- Packaging shall pass into Customer’s ownership upon receipt of the goods.
§ 6 Delivery / delivery period / delivery arrears / fixed dates / part deliveries / passage of Risk / storage
- Goods which we have in stock shall be dispatched to Customer within 10 working days at the most. For merchandising products manufactured according to individual wishes, the delivery time can be a maximum of 4 weeks. The precise delivery periods shall be notified to you within the framework of the order process. The period for delivery will start to run on issue of the remittance order to the paying bank or, in the case of other modes of payment, on the day after conclusion of the contract, and will end at midnight of the last day of the period. If the last day of the period falls on a Saturday, Sunday or a general, officially recognized public holiday (bank holiday) at the place of delivery, the next working day shall count as the last day of the period.
- If the delivery period is not complied with, Customer shall set a suitable period of grace for MERCHCOWBOY to deliver not falling short of 3 weeks. After expiry of the period, Customer shall be entitled to withdraw from the contract.
- Part deliveries shall be admissible. For customers who are consumers, part deliveries must be reasonable. If you are not interested in a part delivery, do not open the goods until the remainder of the delivery has arrived. If the goods have been opened by you, you must bear the loss of value incurred in the event of withdrawal following the expiry of the revocation period. For part deliveries, we bear the additional dispatch costs resulting from this.
- The risk of chance destruction and chance deterioration shall pass to Customer when we have provided the purchased foods to the forwarder, haulier or other person or institution intended for performance of the dispatch. However, if Customer is a consumer, the risk of chance destruction and chance deterioration shall only pass to Customer upon provision to Customer. Risk shall in any case pass to Customer upon commencement of arrears.
- If Customer falls into arrears of acceptance or if delivery is delayed for other reasons for which it is answerable, Customer shall bear all and any additional costs, in particular costs of repeat service and a one-off lump-sum for expenditure to the amount of € 5 for the actual additional expenditure for the second service and, if applicable, the costs of storage.
§ 7 Retention of title
- All deliveries (with the exception of hard tickets, which we are given as goods on provision to which title continues to accrue to Organiser) shall exclusively be subject to retention to title. Upon complete payment of the purchase price by consumers, until payment of all claims by MERCHCOWBOY from the business relationship with entrepreneurs, the goods supplied shall remain property of MERCHCOWBOY. Pledging and transfer by way of security of the conditional commodities has been banned for Customer. Seizures or other encumbering disposals by third parties shall be notified to us without delay.
- In cases of conduct by Customer in breach of contract, we shall be entitled (but not obliged) to withdraw from the contract and to demand return of the goods.
- If Customer is an entrepreneur, it may resell the goods supplied in the course of customary business dealings before payment of the goods. In such a case, however, Customer shall be obliged to disclose MERCHCOWBOY’s ownership to its customers (extended retention of title). Further, Customer here and now assigns said claims from the resale with all subsidiary rights and collateral to MERCHCOWBOY up to compensation of all claims accruing to MERCHCOWBOY against Customer. We accept the assignment. If the claim from the resale becomes part of a current account relationship between Customer and its customer, said transfer by way of security shall extend to the balance receivables to the same amount (extended retention of titles with advance cession). Customer may collect the assigned claims as long as MERCHCOWBOY does not revoke this authorisation. MERCHCOWBOY shall be entitled to revocation if the secured claims are jeopardised, in particular if the customer falls into arrears with its payment. The authorisation to collection shall expire without further ado at the time at which Customer has ceased its payments or if an application for insolvency proceedings against its assets is made by it or by third parties. Following revocation or expiry of the collection authorisation, as the case may be, MERCHCOWBOY shall be entitled and Customer obliged to notify the assignment of claims to the customer. Customer shall then refrain from any collection and forward any amounts then received without delay to MERCHCOWBOY. Upon request, Customer shall notify MERCHCOWBOY at any time in writing to whom it has resold the objects of delivery and transmit all information as well as documents about the assigned claims.
- Machining and processing of the goods by Customer shall always be on behalf and by order of MERCHCOWBOY. If processing is done with materials not belonging to us, we shall acquire co-ownership to the new object in the ratio of the value of the goods delivered by us to the other materials processed. The same shall apply if the merchandising products are blended with other materials not belonging to us.
§ 8 Information for the user
Customer engages to observe any operating instructions and information for the use enclosed with the merchandising products in order to guarantee a proper and secure use of the merchandising products. Unintended or improper use shall rule out claims from defects.
§ 9 Revocation
MERCHCOWBOY grants Customer as a consumer the statutory right of revocation in remote sales (pursuant to Annex 1 to Article 246 a § 1 sub-section 2 sentence 2 Introductory Act to the German Civil Code)
§ 10 Voluntary right of return for goods from “Merch & Music“ and “Satellite shops“ / defect rights
- We grant our customers ordering merchandising products in our “Merch & Music“ online shop and in our “Satellite shops” a voluntary right of return for goods which you do not like, do not fit etc. of a total of 40 days starting from receipt of the goods alongside the statutory right from defects and the right of revocation of a consumer according to remote sales (both of which expressly remain unaffected by the right to return). Until the expiry of the period for the statutory right of revocation, the terms and conditions stated there shall apply exclusively. The voluntary right of return shall expressly not apply to purchased tickets. The precondition for exercising the voluntary right of return shall however be that the goods are returned to us intact in their original condition and in the original sealed packaging. We request that these goods are returned to us within 40 days of receipt (punctual dispatch shall suffice) to:
MERCHCOWBOY GmbH & Co. KG
We only accept returns if they are dispatched “franco domicile”.
Please use our return slip, which you can download free of charge [ here ]. For repayment, we use the same means of payment which you used in the original transaction, unless we use a different form of return and no additional costs originate for you as a result.
- If the goods supplied manifest a defect, Customer as a consumer can at its choice demand remedy of the defect (reworking) or replacement delivery. If reworking or replacement delivery fails, Customer shall be entitled, at its choice, to demand reduction of the purchase price or to withdraw from the contract. If Customer is an entrepreneur, we reserve the right to choose the nature of subsequent performance in the event of existence of a defect.
- Customer shall have damage to the packaging confirmed in writing by the transport company upon acceptance of the goods. If Customer is an entrepreneur, it shall be obliged to notify defects in writing to MERCHCOWBOY without delay after receipt or arrival of the goods at the destination - albeit no later than 5 days after receipt or arrival, as the case may be. If it is a question of a hidden defect not recognisable upon delivery, written notification shall take place without delay following discovery, albeit no later than 5 days after discovery. The object giving rise to complaint shall be sent to us for examination carefully and, as far as possible, in the original packaging.
- All pictures used for the online presentation of goods of the MERCHCOWBOY online shops are merely exemplary photos. They do not represent the product in question in its natural condition in each case, but serve visualisation. The description of the products shall be decisive. Technically induced deviations in the colour in the course of printing compared with the requirements shall not entitle Customer to make claims from defects. Deviations in colour can only be claimed if a template binding for printing and matching the requirements of MERCHCOWBOY is also supplied. Further, Customer shall be obliged to provide MERCHCOWBOY with a sample of the goods giving rise to complaint without delay.
- MERCHCOWBOY shall only be liable for shortages/ loss of the merchandising product in cases of malice aforethought or gross negligence. In shortages below 2% relative to the total supply quantity of the merchandising products, MERCHCOWBOY shall not be liable towards entrepreneurs. In addition, MERCHCOWBOY shall only be liable to the amount of the manufacturing costs incurred and proven, liability for subsequent damage from defects, in particular loss of profits, being ruled out.
- The warranty period for consumers shall be 2 years from receipt of the goods, for entrepreneurs 1 year from receipt of the goods.
§ 11 Liability
- Our liability for damages has been limited to malice aforethought or gross negligence, regardless of the legal reason. This shall not apply to damage from injuries to life, limb and health based on a deliberate or negligent breach of duties on our part or to claims according to the Product Liability Act. The limitations of liability shall also not apply to other damage based on a deliberate or grossly negligent breach of duties or on conduct culpably breaching the cardinal contractual duties on our part. However, in the latter case, liability shall be limited to the damage typically foreseeable at the conclusion of the contract. We shall also be liable for our statutory representatives and vicarious agents.
- To the extent that liability for damages not based on an injury of Customer’s life, limb or health has not been ruled out for slight negligence, these claims shall be barred by limitation within one year, starting with the origination of the claim.
§ 12 Data protection
- All data provided will be treated and handled in conformity with the statutory regulations. Further details on this can be found on the starting page under the heading “Data protection”
- Every customer has the right to be informed of the data relating to him/her which is stored by the Merchcowboy Online Shop and, if need be, to request its deletion. The Merchcowboy Online Shop can be contacted by the customer for this purpose at email@example.com.
§ 13 Guarantee of rights and indemnification
- In the event of production of the merchandising products according to Customers’ specifications, Customer assures having acquired all the rights of utilisation concerning data, graphics, inscriptions, names etc. supplied when placing the order, in particular, but not limited to, copyrights, service protection, trademark, name and other rights, and being authorised to dispose thereof.
- In addition, Customer declares that statutory directives are also not breached, in particular no contents which are radical right-wing, glorify violence, are pornographic or liable to corrupt the young.
- In a breach against § 13 no. 1 and 2, Customer shall indemnify MERCHCOWBOY against all and any established or alleged claims of third parties at first request. This shall also include all and any costs and expenditure incurred in the course of litigation. If there is merely a substantiated suspicion of a breach of § 13 no. 1 and/or 2, MERCHCOWBOY shall be entitled to cease sale of the merchandising product in question.
§ 14 Consumer arbitration
OPPORTUNITY FOR ONLINE DISPUTE RESOLUTION UNDER EU REGULATION NO. 524/2013
Starting from February 2016, the EU Commission is making an Internet platform available to the public for the purpose of online dispute resolution under the link: http://ec.europa.eu/consumers/odr/. The platform is intended as a contact point to enable disputes relating to contractual obligations arising from online purchase contracts to be settled without the need for recourse to the courts.
You will find the following information in german language: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=DE
Hereby we inform you that according to The "consumer dispute resolution act" (german abbreviation: VSBG) we declare that we are neither willing nor obliged to participate in dispute settlement proceedings before a consumer arbitration body.
§ 15 Miscellaneous / final provisions
- Customer shall be obliged to notify MERCHCOWBOY of any change of its address without delay. As long as such a notification by Customer cannot be proven, the address known up to such time shall be deemed Customer’s valid address.
- The right to offset shall only accrue to you if your counterclaims are legally effective or we have confirmed them in writing. Exercising of a right of retention shall only be possible if the counterclaim is based on the same contractual relationship.
- Side-agreements, amendments and addenda in dealings with entrepreneurs shall require written form. This shall also apply to an amendment of the requirement of written form itself.
- The law of the Federal Republic of Germany shall prevail without the conflict of law rules of international private law and ruling out UN purchase law, the latter only to the extent that Customer is an entrepreneur. The choice of law provision shall not be effective if specific consumer directives in the home country of a customer who is a consumer are more favourable.
- To the extent that an agreement on a place of jurisdiction is admissible exclusively in dealings with entrepreneurs, the place of jurisdiction shall be the current headquarters of MERCHCOWBOY at the time in question. Place of performance shall likewise be the current headquarters of MERCHCOWBOY. This shall not apply if Customer is a consumer, in which case the place of performance shall be Customer’s residence or the destination named by Customer, as the case may be.
- To the extent that individual provisions of the present Terms are or become ineffective, the validity under law of the remaining provisions shall not be influenced. The same shall apply according to all and any loopholes.
Münster, January 2021