General terms and conditions

General terms and conditions with customer information

MONITORINGtoGO as “monitoring as a service”. is a cloud-based service of Messfeld GmbH in cooperation with providers of digital services and the necessary hardware and software components. The services and hardware and software components are described in technical specifications and manuals. The service is composed of a delivery, the provision of Digital Services, the provision of communication services and service performances. In the following, the total power MONITORINGtoGO Service  or in short form just called Service.

1. scope

1.1. For the business relationship between Messfeld GmbH as service provider and the customer (hereinafter referred to as “customer”), the following General Terms and Conditions apply exclusively in the version valid at the time of the order.

1.2. A consumer within the meaning of these GTC is any natural person who enters into a legal transaction for a purpose that is predominantly neither commercial nor self-employed. An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his commercial or independent professional activity.

1.3 Deviating terms and conditions of the Customer shall not be recognized unless the Service Provider expressly agrees to their validity.

2. offers and service descriptions
2.1 The presentation of the products in the online store does not constitute a legally binding offer, but an invitation to place an order. Descriptions of services in catalogs as well as on the websites of the service provider do not have the character of an assurance or guarantee.

2.2 All offers are valid “while stocks last”, unless otherwise stated with the products. In all other respects, errors are excepted. 

2.3. The offers of Messfeld GmbH are subject to change.

3. order process and conclusion of contract 

3.1 Conclusion of a service contract for MONITORINGtoGO  as “monitoring as a service”.

3.1.1  By purchasing one of the offered MONITORINGtoGO hardware and software, as well as service package, it comes to a MONITORINGtoGO Service contract. The service can be ordered via the webshop Messfeld GmbH or by a partner of Messfeld GmbH or directly with Messfeld GmbH.

3.1.2. “Monitoring as a service” applies with the service price for the service time. The minimum service period is 12 months, after which the service is continuously extended for another 12 months.

3.1.3.  The service fee must be paid in advance. In case of delayed payment Messfeld is entitled to interrupt or stop the delivery and to demand the return of the components. MONITORINGtoGO to be claimed at the expense of the service recipient. A service interruption does not result in a service time interruption.

3.2. Order process in the online store

3.2.1.The Customer may select products from the assortment of the Service Provider without obligation and collect them in a so-called shopping cart via the button. Within the shopping cart the product selection can be changed, e.g. deleted. Subsequently, the customer can proceed to the completion of the order process within the shopping cart by clicking the button [Weiter zur Kasse].

3.2.2 Via the button [zahlungspflichtig bestellen] the customer submits a binding request to purchase the goods in the shopping cart. Before submitting the order, the customer can change and view the data at any time and use the browser function “back” to return to the shopping cart or cancel the ordering process altogether. Required information is marked with an asterisk (*).

3.2.3. The service provider then sends the customer an automatic confirmation of receipt by e-mail, in which the customer’s order is listed again and which the customer can print out using the “Print” function (order confirmation). The automatic acknowledgement of receipt merely documents that the Customer’s order has been received by the Service Provider and does not constitute acceptance of the request. The purchase contract is only concluded when the service provider has digitally shipped the ordered product within 7 days, handed it over or confirmed the shipment to the customer within 7 days with a second e-mail, explicit order confirmation or sending the invoice. Acceptance may also come about through a request for payment sent to the Customer by the Service Provider and, at the latest, through the completion of the payment process. In the event of several acceptance procedures, the earliest acceptance time shall be decisive. If the service provider does not accept the customer’s offer within the acceptance period, no contract is concluded and the customer is no longer bound by his offer.

3.2.4. If the service provider allows payment in advance, the contract is concluded with the provision of the bank data and request for payment. If the payment is not received by the service provider within 10 calendar days after sending the order confirmation, the service provider withdraws from the contract with the consequence that the order is invalid and the service provider is not obliged to deliver. The order is then completed for the customer and the service provider without further consequences. A reservation of the article in case of advance payment is therefore made for a maximum of 10 calendar days.

4. prices and shipping costs
4.1. All prices indicated on the website of the service provider, include the statutory value-added tax and other price components. The agreed prices and discounts apply at the time the service contract is concluded and for the agreed service period.

4.2. In addition to the stated prices, the service provider charges shipping costs for delivery. The shipping costs are clearly communicated to the customer on a separate information page and during the ordering process.

4.3 Unless separately stated, the prices do not include any costs for assembly or the like. These are agreed separately and charged according to time and effort.

4.4. Unless otherwise stipulated in the order confirmation , payment shall be made in Euro by means of an irrevocable letter of credit to be issued prior to delivery to , which also permits partial deliveries. All costs for this shall be borne by the customer. Even in the event of late payment through no fault of the customer  we are entitled to charge interest on arrears in the amount of in the amount of 12% per annum.  

4.5. Wooden boxes, cardboard boxes and disposable packaging will be charged at cost and will not be taken back.

5. delivery, availability of goods

5.1. Delivery is only in Austria and Germany.

5.2. If payment in advance has been agreed, delivery will be made after receipt of the invoice amount.  The compliance with the deadlines for deliveries requires the timely receipt of all documents to be provided by the customer, necessary approvals and releases, in particular the filling of the master data for the configuration of sensors and gateways. If these requirements are not met in time, the deadlines shall be extended accordingly.

5.3. If the delivery of the goods fails through the fault of the customer despite three attempts at delivery, the service provider may withdraw from the contract. Any payments made will be refunded to the customer without delay, less the costs of delivery.

5.4. If the ordered product is not available because the service provider is not supplied with this product by its supplier through no fault of its own, the service provider may withdraw from the contract. In this case, the service provider will inform the customer immediately and, if necessary, suggest the delivery of a comparable product. If no comparable product is available or if the Customer does not wish a comparable product to be delivered, the Service Provider shall immediately reimburse the Customer for any consideration already paid.

5.5. Customers are informed about delivery times and delivery restrictions (e.g. restriction of deliveries to certain countries) on a separate information page or within the respective product description.

5.6 In the case of customers who are companies, the risk of accidental loss and accidental deterioration of the goods shall pass to the customers as soon as the service provider has delivered the item to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. The stated delivery dates and deadlines are not fixed dates, subject to other commitments and agreements. 

5.7 The Service Provider shall not be responsible for delays in delivery and performance due to force majeure and due to unforeseeable events that make delivery significantly more difficult or impossible for the Service Provider vis-à-vis customers who are entrepreneurs, even in the case of bindingly agreed deadlines and dates. In this case, the service provider  is entitled to postpone the delivery or service for the duration of the impediment plus a reasonable start-up period. The right to postpone the deadline also applies to customers who are entrepreneurs in cases of unforeseeable events that affect the operations of a pre-supplier and for which neither the pre-supplier nor the service provider is responsible. During the duration of this impediment, the customer is also released from his contractual obligations, in particular payment. If the delay is not reasonable for the customer, the customer may withdraw from the contract by written declaration after a reasonable period to be set by the customer or after mutual consultation with the service provider.

 5.8. The digital services are provided in accordance with the features and functionalities defined in the technical specifications and on the basis of the General Terms and Conditions of the providers of the platforms. The providers of the digital services shall endeavor to make the services available subject to operational requirements including maintenance and security.

6. payment modalities
6.1. The customer can choose from the available payment methods within the framework and before completion of the ordering process. Customers are informed about the available means of payment on a separate information page.

6.2. If payment by invoice is possible, the respective agreed payment conditions apply.  For all other methods of payment, payment must be made in advance without deduction.

6.3. If third-party providers are commissioned with payment processing, e.g. Paypal. their general terms and conditions apply.

6.4. If the due date of payment is determined according to the calendar, the customer is already in default by missing the deadline. In this case, the customer shall pay the statutory interest on arrears.

6.5. The Customer’s obligation to pay default interest shall not preclude the Service Provider from asserting further claims for damages caused by default.

6.6. The customer shall only have a right of set-off if its counterclaims have been legally established or acknowledged by the service provider . The customer may only exercise a right of retention insofar as the claims result from the same contractual relationship.

7. termination

7.1. The minimum subscription period starts with delivery of the components to MONITORINGtoGO. The date of the shipping delivery bill applies. In the case of partial deliveries, the minimum subscription period is split .

7.2. The service contract for MONITORINGtoGO has a minimum service period of 12 months and is renewed annually thereafter for a further 12 months. The service can be terminated in writing 1 month before the expiry of the minimum service period or 1 month before expiry of the service extension.  If the written notice of termination is not received in due time, the Service will be extended for one year under the then applicable terms and conditions. The effective date of termination is the date of receipt of the notice and confirmation by Messfeld.

8. obligations to the service contract

8.1. Messfeld GmbH undertakes to provide the customer with the agreed components MONITORINGtoGO for the agreed service time .

8.2. The Customer undertakes to use the components to MONITORINGtoGO  only as intended, to carefully observe the relevant accident prevention and occupational health and safety regulations and to pay for the service as agreed, to treat the service items properly and to return them cleaned at the end of the service period  .

8.3. The SIM cards included with delivery may not be misused . Applicable telecommunications laws must be taken into account and complied with in every respect.

9. retention of title
9.1. Unless separately agreed in writing, the delivered goods to MONITORINGtoGO remain the property of Messfeld GmbH.

9.2. After expiration of the service contract, for whatever reasons , the components are to be returned cleaned to Messfeld GmbH.
return The  customer is obligated to cooperate with measures taken by Messfeld GmbH to protect the property right or any other right in lieu thereof to the delivery item.

9.3. Not included in the service contract are the evaluation of the data, manual monitoring or analysis of the data. This lies in the Responsibility of the customer. FFor services such as analysis and evaluation of the data The conclusion of a separate agreement is necessary for services such as data analysis and evaluation.

10. Warranty for material defects and guarantee

10.1. The warranty (liability for defects) shall be governed by statutory provisions subject to the following provisions. Hidden defects must be reported immediately after their discovery. If a complaint is not made or not made within 3 months, the goods shall be deemed to have been approved.  

10.2. A guarantee exists for the goods delivered by the service provider only if this has been expressly given. Customers are informed about the warranty conditions before initiating the order process.

10.3. If the customer has used the defective item within the meaning of § 439 para. 3 BGB (German Civil Code) in accordance with its type and intended use, the Service Provider shall, subject to an express agreement and without prejudice to the other warranty obligations, not be obliged to reimburse the Customer for the necessary expenses for removing the defective item and installing or mounting the repaired or delivered defect-free item. Accordingly, the Service Provider shall also not be obligated to reimburse expenses for the removal of the defective item and the installation or fitting of the repaired or delivered defect-free item within the scope of a recourse by the Customer within the supply chain (i.e. between the Customer and its customers).

10.4. Messfeld does not warrant the usability of the results of the services for the respective purpose of the customer. In particular, Messfeld does not warrant that the services and the results are fail-safe, uninterrupted and/or error-free. 

10.5.  The Services are provided on the basis of networks, services and/or components from third-party operators or suppliers .  Measurement Field will use reasonable efforts to maintain the connectivity availability required to provide the Services. Messfeld assumes no liability for failures and malfunctions caused by failures in the public telecommunication networks or faulty products and malfunctions of the suppliers.

10.6. In the event that a circumstance of force majeure makes the fulfillment of the contract considerably more difficult or prevents the proper fulfillment of the contract or makes it impossible, Messfeld GmbH is not liable. Force majeure is considered to be all events unforeseeable for Messfeld, its partners or also the customer . 

10.7.  Insofar as Messfeld is prevented from providing the contractual services due to force majeure, this shall not be deemed a breach of contract and any contractual deadlines shall be extended accordingly by a reasonable period of time. 

10.8. If the provided components to MONITORINGtoGO are damaged at the place of use without the fault of Messfeld GmbH or if they get lost without the fault of Messfeld GmbH, the customer is obliged to compensate these damages. Damage resulting from normal wear and tear shall not be taken into account.

11. liability
11.1. The following exclusions and limitations of liability shall apply to the Service Provider’s liability for damages, notwithstanding the other statutory requirements for claims.

11.2. The service provider shall be liable without limitation insofar as the cause of damage is based on intent or gross negligence.

11.3. Furthermore, the service provider is liable for the slightly negligent breach of essential obligations, the breach of which endangers the achievement of the purpose of the contract, or for the breach of obligations, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the customer regularly relies. In this case, however, the service provider shall only be liable for the foreseeable damage typical for the contract. The Service Provider shall not be liable for the slightly negligent breach of obligations other than those specified in the preceding sentences.

11.4. The above limitations of liability shall not apply in the event of injury to life, limb or health, for a defect following the assumption of a guarantee for the quality of the product and in the event of fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.

11.5. Insofar as the liability of the service provider is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.

12. data protection

12.1. Personal data

12.1.1.The customer agrees that personal data received from him with – or in connection with – the order shall be stored for processing and evaluation in compliance with the statutory provisions.

12.1.2. Information on how Messfeld GmbH collects, processes and stores personal data within the scope of the service contract and for other purposes is contained in the currently valid version of the Privacy Policy    can be found.

12.1.3. Messfeld GmbH reserves the right to reject a customer without giving reasons.

12.2. Non-personal data

12.2.1. The customer shall provide the data necessary for the provision of the service, such as structures and designations in accordance with the service agreement .

12.2.2. The customer may not make data available without being authorized to do so and by using it in any way violate applicable law or behave unlawfully.

12.2.3. The Services are provided on the basis of non-personal data and are provided by the Customer. The Customer  agrees that data may be used for the improvement of the Services and further development of the Services, including the use of artificial intelligence. This also applies in the event of termination.

12.2.4.Appropriate state-of-the-art technical and organizational security measures are taken to protect the data.

12.3. Storage of the contract text
12.3.1.. The customer can print the text of the contract before submitting the order to the service provider by using the print function of his browser in the last step of the order.

12.3.2 The Service Provider shall also send the Customer an order confirmation with all order data to the e-mail address provided by the Customer. With the order confirmation, but at the latest upon delivery of the goods, the customer will also receive a copy of the GTC together with the cancellation policy and the information on shipping costs and delivery and payment terms. If you have registered in our store, you can view your orders in your profile area. In addition, we store the text of the contract, but do not make it accessible on the Internet.

12.3.3. Customers who are entrepreneurs can receive the contract documents by e-mail, in writing or reference to an online source.

13. Export control

13.1. For all transactions conducted, Customer shall comply with the applicable export control and sanctions regulations and laws of the European
Union, the United States of America and other jurisdictions.

14. final provisions
14.1. Austrian substantive law shall apply. The applicability of the UN Sales Convention is excluded. 

14.2. The contract language is German.

14.3.The place of jurisdiction for all disputes arising from the contractual relationship is the court with subject-matter jurisdiction at the registered office of Messfeld GmbH

14.4.The current version of the GTC is available on the website of Messfeld GmbH and the website of MONITORINGtoGO. Changes are also binding for existing contractual relationships . Objectively justified and reasonable changes to the performance obligations will be tolerated by the customer. 

14.5.European Commission platform for online dispute resolution (OS) for consumers: We are not willing and not obliged to participate in a dispute resolution procedure before a consumer arbitration board


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