Terms of use


Miessen & Berger GbR
Schiessstattstr. 14a
84072 Au id Hallertau

T: +49 (0) 8752 867 63 12
E: info@messtex.de

  • Validity of GTC The following General Terms and Conditions shall apply in addition to and subordinate to the provisions of individual contracts. Deviating or supplementary terms and conditions of business of the client shall not apply unless they have been accepted in writing by Mießen & Berger GbR, hereinafter referred to as Mießen & Berger GbR. This shall apply even if Mießen & Berger GbR performs services in the knowledge of deviating or supplementary terms and conditions of the client.

  • Offers All offers made by Mießen & Berger GbR are subject to confirmation. They are subject to written confirmation by Mießen & Berger GbR.

  • PricesThe list prices valid at the time shall be deemed to have been agreed. All prices are subject to statutory value added tax.

  • Payments The respective invoice amount shall be due for payment in full immediately, in the case of final invoices, however, not before delivery and in the case of final invoices concerning work performances (e.g. individual software, data migration) not before acceptance has taken place or is deemed to have taken place. The client shall be in default with his outstanding liabilities without any further declarations by Mießen & Berger GbR 14 days after the invoice date or, if a delivery or acceptance has taken place or is deemed to have taken place later, 14 days after the delivery or acceptance date. In case of default of payment Mießen & Berger GbR shall be entitled to demand the retransfer of the licence and to terminate or withdraw from the contract; the client shall be obliged to retransfer the licence. The request for retransfer does not constitute a declaration of termination or withdrawal by Mießen & Berger GbR unless this is expressly declared. The client may only set off claims which are undisputed or have become res judicata. The client shall not be entitled to a right of retention. Mießen & Berger GbR shall be entitled to issue invoices, also for partial payments, as soon as the order has been placed.

  • ServicesMießen & Berger GbR provides a platform via the app and the website where clients can book the service to enable their residents to report their consumption of water, gas and heating costs online. The offer is aimed in particular at municipalities, landlords, property managers and billing companies. Customers can use the website to upload their consumption data for billing purposes. At present, however, the billing is done by the managing body itself. Mießen & Berger GbR also offers the installation and maintenance of sparking and non-sparking water meters, heat meters, smoke alarms and heat cost allocators. These can be rented or purchased by the customer. In addition, Mießen & Berger GbR offers all kinds of drinking water tests and waste water tests, as well as the preparation of energy performance certificates.

  • Acceptance Acceptance Immediately after delivery, the customer is obliged to accept delivered software products and other work performances (e.g. data migration). The delivery of the respective software or service shall be deemed to have been accepted no later than two weeks after going live or four weeks after the delivery of software or the provision of another work performance, unless the customer objects to the acceptance beforehand by means of an express written declaration. The following defect classes apply to the acceptance: Error class 1: The contractually agreed, economically reasonable use is not possible or is unreasonably restricted or impeded. Defect class 2: The contractually agreed, economically reasonable use is not unreasonably restricted or impeded. The assignment of the detected faults and defects to one of the above fault classes shall be made by mutual agreement between Mießen & Berger GbR and the client. Faults and defects of fault class 1 are "substantial faults" which entitle the client to refuse acceptance. Defects of defect class 2 are "insignificant defects" which do not entitle the client to refuse acceptance. Mießen & Berger GbR assures to remove insignificant defects even after acceptance. Mießen & Berger GbR and the client shall draw up a joint acceptance report on the result of acceptance meetings, including a description of the detected defects as well as their nature, extent and dates for their elimination.

  • Warranty Notices of defects and other complaints shall be notified to Mießen & Berger GbR in writing immediately after delivery. Mießen & Berger GbR shall be notified in writing of defects and faults which are not recognisable immediately after they have come to its attention. The client must provide Mießen & Berger GbR with verifiable documentation on the nature and occurrence of deviations from the performance specification and cooperate in the containment of defects and errors. The notice of defects shall enable the reproduction of a defect. In the case of properly notified defects and faults, Mießen & Berger GbR shall be entitled, at its discretion, to rectify the defect or to make a replacement delivery. In particular, Mießen & Berger GbR is entitled to correct errors in the software products and documentation by sending software updates and revised documentation. The client shall be obliged to cooperate as necessary in this respect. If the supplementary performance fails, the customer must complain again and allow a second supplementary performance. Only if this also fails may the client reduce the price or withdraw from the contract. The warranty period for Mießen & Berger GbR services is 12 months. The limitation period for other claims - with the exception of claims under clause VIII - shall be 12 months unless a shorter limitation period is provided by law. Subsequent performance shall not lead to a new start or an extension of the warranty period. Mießen & Berger GbR does not warrant that software products will run without errors in all existing or subsequently modified hardware and General Terms and Conditions (GTC) for services and the delivery and leasing of products of Mießen & Berger GbR software environments of the client. Mießen & Berger GbR is only liable for defects in the event of (a) proper storage, installation, operation and maintenance of the products in accordance with the proper operating instructions provided by it or its suppliers or subcontractors; (b) proper recording and provision of the operating and maintenance data during the warranty period; (c) performance of modifications and repairs of the subject matter of the contract authorised by Mießen & Berger GbR, exclusively with the prior consent of Mießen & Berger GbR.

  • Liability and Compensation Mießen & Berger GbR shall be liable to the client only for the absence of warranted characteristics, in the event of a breach of essential contractual obligations and in the event of intent or gross negligence in accordance with the statutory provisions. Mießen & Berger GbR shall only be liable for the loss of data if the client has taken adequate precautions against data loss (at least one data backup daily). Apart from that, Mießen & Berger GbR shall only be liable in case of injury to life, body or health and in accordance with the mandatory provisions of the Product Liability Act. The liability of Mießen & Berger GbR is, as far as permissible, limited to the damage typical for the contract. Mießen & Berger GbR shall not be liable for the non-performance, non-fulfilment or delayed fulfilment of its co-operation and/or contractual obligations if these are due to force majeure (e.g. strike or natural disasters) or an event beyond the control of Mießen & Berger GbR. In such a case, Mießen & Berger GbR will promptly notify the client of the occurrence of the force majeure or event and its causes. Dates and deadlines shall be extended by a reasonable period of time. The above exclusions and limitations of liability also apply to the legal representatives or vicarious agents of Mießen & Berger GbR as well as to their personal liability (genuine contract for the benefit of third parties). Liability is limited in amount to the value of the order.

  • Rights of use and exploitation Insofar as a software product is developed exclusively for the client and has been financed 100% by the latter, Mießen & Berger GbR shall grant the client the exclusive, transferable, temporally and spatially unrestricted right to use and exploit the software product. In all other respects the client is granted a non-exclusive, temporally and geographically unlimited simple right to use the software products and the associated documentation. The use is limited in scope to the licences granted. In the case of the purchase of software, the granting of the rights of use is subject to a condition precedent in favour of the licensor until the corresponding (monthly) licence fees have been paid in full. Mießen & Berger GbR shall retain all other rights to the delivered software products and related documentation including all copies and partial copies thereof. In the case of the simple right of use this concerns in particular the further exploitation and all other rights of use. The customer shall not be entitled to any further development rights unless the parties agree otherwise in writing or the processing serves to maintain or restore the agreed functionality. The simple licence is not transferable and the licence material may not be made available to third parties, either in the original or in any other way. The customer is granted a right of reproduction (copy right) exclusively for the purpose of data backup or archiving. The customer undertakes to retain unchanged the protective notices contained therein, such as copyright notices, as well as other reservations of rights, and to include them in all complete and partial copies. The client is obliged to notify Mießen & Berger GbR without delay of judicial measures or other access by third parties to the licences. The client shall be entitled to grant third parties the use in the course of a Software-as-a-Service (SaaS) service upon written agreement.

  • Duties to co-operate The client shall grant Mießen & Berger GbR the access to the business or access to the IT environment necessary for the performance of the agreed services and shall hand over all information and documents necessary for the contractor's activities in good time. The client shall ensure that a qualified project manager with decision-making powers is always available.

  • Data protection and confidentiality Mießen & Berger GbR is entitled to store, process and transmit for its own purposes the data necessary for the processing of business transactions. The client undertakes to maintain strictest secrecy about confidential information which becomes known within the framework of the contractual relationship. Confidential information is all business, technical, financial and other information and documents. Non-confidential information is such information that is generally known or becomes generally known without infringement of the customer's rights or with regard to which the customer is clearly obliged to disclose due to legal obligations or official instructions. Any disclosure of confidential information by the client to third parties who are not employees requires the prior written consent of Mießen & Berger GbR. The client shall ensure that confidential information is only passed on to employees engaged by the client if they have given an equivalent written undertaking of confidentiality. This also applies to the General Terms and Conditions (GTC) for services and the delivery and leasing of products of Mießen & Berger GbR GmbH (Mießen & Berger GbR) General Terms and Conditions of Mießen & Berger GbR GmbH Page 3 of 3 lawyers, tax consultants and auditors of the client. Furthermore, the client shall guarantee the confidentiality of confidential data vis-à-vis third parties in the course of a SaaS service. In this case, the software is operated on a computer centre of the customer and access is granted to one (1) third party per licence.

  • Withdrawal from the contract and terminationMießen & Berger GbR has the right to suspend deliveries and services if the client does not fulfil his cardinal obligations. In the event of termination or withdrawal from the contract, the client shall pay Mießen & Berger GbR the agreed remuneration for the services rendered until termination. Section 649 of the German Civil Code (BGB) shall apply analogously to the remuneration for services commissioned but not yet rendered up to the time of termination.

  • Other Mießen & Berger GbR shall be entitled to render the commissioned services through subcontractors. Mießen & Berger GbR shall notify the client of the use of subcontractors before rendering the respective service. Companies affiliated with Mießen & Berger GbR pursuant to §§ 15 ff. AktG are entitled to join this contract. Mießen & Berger GbR shall be entitled to transfer the rights and obligations under this contract to companies affiliated with Mießen & Berger GbR pursuant to §§ 15 ff. AktG (German Stock Corporation Act), whereby the client herewith already gives his consent thereto. In the event of transfer, Mießen & Berger GbR shall continue to be liable for the obligations arising from this contract. No verbal collateral agreements to this contract have been made. The provisions of this contract take precedence over the provisions of contracts of an earlier date. Amendments or supplements to the provisions of this contract must be made in writing to be legally effective. This written form clause can only be waived by written agreement. The provisions of this contract shall only be effective in favour of third parties if they expressly regulate this legal consequence. Otherwise, it is not a contract for the benefit of third parties. Should any provision of this contract be or become invalid or unenforceable, the remaining provisions of this contract shall not be affected thereby. Ineffective or unenforceable provisions shall be replaced by effective and enforceable provisions which correspond to the discernible or presumed intention of the contracting parties and constitute a provision which is reasonable under the circumstances. The place of performance is the registered office of Mießen & Berger GbR. The exclusive place of jurisdiction is Dortmund. The law of the Federal Republic of Germany shall apply with the exception of the UN Convention on Contracts for the International Sale of Goods and its international private law. Contracts between the supplier and the customers shall be governed by the law of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods. The statutory provisions on the restriction of the choice of law and on the applicability of mandatory provisions, in particular of the state in which the customer has his habitual residence as a consumer, shall remain unaffected.


Right of withdrawal

You have the right to cancel this contract within fourteen days without giving any reason.

The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken or has taken possession of the goods.

In order to exercise your right of revocation, you must inform us,

Mießen & Berger GbR
authorised representatives; Jonas Berger and Jessica Mießen
Schießstattstraße 14a
84072 Au in the Hallertau

Telephone: +49 (0) 8752 867 63 12
Email: info@messtex.de

by means of a clear declaration (e.g. a letter or e-mail sent by post) of your decision to revoke this contract. You can use the enclosed model withdrawal form for this purpose, which is, however, not mandatory.

You can also fill in and submit the model withdrawal form or another clear declaration electronically on our website www.messtex.de. If you make use of this option, we will send you a confirmation of receipt of such revocation without delay (e.g. by e-mail).

To comply with the revocation period, it is sufficient for you to send the notification of the exercise of the right of revocation before the expiry of the revocation period.

Consequences of the revocation

If you withdraw from this contract, we must refund all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the cheapest standard delivery offered by us), without delay and at the latest within fourteen days of the day on which we received notification of your withdrawal from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment. We may refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.

You must return or hand over the goods to us without delay and in any case no later than fourteen days from the day on which you notify us of the cancellation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days. You shall bear the direct costs of returning the goods. You only have to pay for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for checking the condition, properties and functioning of the goods.

The right of withdrawal does not apply to the following contracts:

  • Contracts for the delivery of goods that are not prefabricated and for the production of which an individual selection or determination by the consumer is decisive or which are clearly tailored to the personal needs of the consumer.

  • Contracts for the supply of goods which may spoil quickly or whose expiry date would be quickly exceeded.

  • Contracts for the delivery of sealed goods which are not suitable for return for reasons of health protection or hygiene if their seal has been removed after delivery.

  • Contracts for the delivery of goods if they have been inseparably mixed with other goods after delivery due to their nature.

  • Contracts for the supply of alcoholic beverages, the price of which was agreed at the time of conclusion of the contract, but which can be supplied at the earliest 30 days after conclusion of the contract and the current value of which depends on fluctuations in the market over which the trader has no influence.

  • Contracts for the delivery of sound or video recordings or computer software in a sealed package if the seal has been removed after delivery.

  • Contracts for the supply of newspapers, periodicals or magazines with the exception of subscription contracts.

  • Contracts for the supply of goods whose price depends on fluctuations in the financial market over which the trader has no control and which may occur within the withdrawal period.

Sample cancellation form

(If you wish to revoke the contract, please fill in and return this form).

Mießen & Berger GbR
authorized to represent; Jonas Berger and Jessica Mießen
Schießstattstraße 14a
84072 Au in the Hallertau

Telephone: +49 (0) 8752 867 63 12
Email: info@messtex.de

– I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)

– Ordered on (*)/received on (*)

– Name of consumer(s)

– Address of the consumer(s)

– Signature of consumer(s) (only in case of paper communication)

- Date(s)

(*) Delete where inapplicable.