Ferrocene general terms and conditions

1. Term, Renewal Period and Termination

These Terms & Conditions are integral part of the License Agreement (the “Agreement”) between the Customer and the Supplier (Critical Section GmbH, Wallstraße 58/59, D-10179 Berlin), which commences on the Purchase Date, or if contractually agreed the Effective Date, and it shall continue for the duration as selected in the Ferrocene portal (the “Portal”) or if agreed separately by a signed contract document, for the duration in that contract. Unless terminated in writing not less than one (1) month to the end of the Agreement, or by unsubscribing in the Portal, it shall be automatically extended by the selected duration, for an indefinite period.

Either Party may terminate this Agreement if the other Party:
breaches a material obligation and fails to cure that breach within thirty (30) days after receipt of a written notice describing the breach in reasonable detail; or
has a receiver, liquidator or administrator appointed, ceases to trade or has an administrative order made against it, passes a resolution for winding-up, or makes any composition or arrangement with its creditors generally.

The Supplier may, in addition to any other remedies available to it in law or in equity, terminate this Agreement, in whole or in part as it may determine, by written notice to the Customer in the event that the Customer is a corporate customer and
- shall have become insolvent or bankrupt; or
- shall have had any insolvency, bankruptcy or liquidation proceeding or action commenced by or against it; or
- is not able or willing to pay for the selected services by the offered payment services specified in section 5.

Any provision of this Agreement that expressly or by implication is intended to continue in force shall survive termination or expiry of this Agreement for another two (2) years from the cancellation date, including, without limitation: Sections 7, 8, 9, 10, 11, 12.

The Customer has the right to withdraw this Agreement within fourteen (14) days from the Purchase Date without any reason provided, given that it is a private person. The regulations of § 355 of the German Civil Code (BGB) apply. Please refer to the separate document which outlines your rights of withdrawal, when you registered as a private person.

2. License of the Base Software , Usage Rights

From the Signature Date, and in consideration of the Customer paying the License Fee specified in section 5, the Supplier grants to the Customer a personal, non-exclusive, non-transferrable and non-assignable license to use the Base Software and the Support Services. The granted license continues for the selected Term and any Renewal Term.

The Customer may specify as many Concurrent Users as it has chosen to license for in the Portal. Every Concurrent User receives a unique license to log into the Portal and to obtain access to the available resources. The use of CI/CD systems and the installation of an instance of Ferrocene thereon shall be permitted without affecting the number of available seats. All users that make or may make changes to source code compiled with components of the Base Software shall be registered in the Portal.

The Customer may make copies of the Base Software only for the purpose of data recovery, disaster recovery and business continuity. The Customer may use the Base Software on a third-party’s computer for the purposes of disaster recovery only until operable status is restored at the affected site. After disaster recovery has been conducted, Customer must delete any copies of the Base Software from third-party's computers immediately.

The Parties agree that the Customer will not modify the Base Software unless granted in a separate agreement by the Supplier.

If this License Agreement is terminated for whichever reason, the Customer shall delete all copies of the Base Software (including potential modifications) in a non-restorable way within 30 days from the expiration of the granted licenses. Any rights to software or compiled software elements or certification of the Customer’s products which the Customer has created with the help of the Base Software during the License Term remain unaffected by any termination.

The Customer may be offered the possibility to download versions of the Base Software in the Portal which contain Experimental Features or Untested Features. These versions are not officially released, and are therefore not subject to ongoing maintenance or any warranty (“Experimental Releases”). The Customer shall have the right to test these Experimental Features at its own discretion, however, it agrees that no support by any means can be guaranteed.
As soon as Experimental Features or Untested Features become fully supported features, these may no longer be accessible without an additional License Agreement.

The Supplier may grant Evaluation Licenses to selected Customers or individuals for the purposes of, but not limited to, trainings which the Supplier conducts, workshops during fairs or conferences, and demonstrations that require active participation of the audience. For the avoidance of doubt, such Evaluation Licenses are granted for one (1) computing device, must not be used for commercial purposes and are valid for the duration of the training, workshop, conference or demonstration only. The provisions laid down in section 2.5 shall be followed immediately after the respective event has ended. All clauses in the present terms, except for 2.2, 2.3, 3.2, sections 5 and 6, shall be applicable to Evaluation Licenses.

3. Delivery, Installation

The Supplier will provide the Base Software by granting access to the download section in the Portal without unreasonable delay after the Supplier has successfully validated the provided payment details.

The Customer may use the Base Software in any territory or at any Site it assumes reasonable, as long as the restrictions in section 9 are followed.

4. Support

Each Major Release will receive Patch Releases for the duration of its Release Support Period.Longer periods of support or software maintenance would require a separate Maintenance and Support Agreement.

If the Customer detects a major or critical error in the Base Software, the criticality is to be described to the Supplier so that any corrections can be made in a timely manner. Although the Supplier seeks to dispose of errors as quick as possible, no guarantees regarding a specific timeframe will be made by the Supplier to the Customer in which potential errors can be fixed.

Exclusions to the scope of this Agreement: Upon Customer's request, the Supplier may offer to provide additional services as a separate project, which are out of scope of the current Agreement. Such additional services may include but are not limited to:
- providing support for created errors
- actual technical report and qualification signatures
- configuration or software development services
- assistance with hardware or software installation or upgrades
- training and consultancy services
- Extended maintenance and support
- The minimum timeframe for such an arrangement shall be one (1) day.

5. Fees, Payments

The subscription fee for the Base Software is EUR 25,00 (plus VAT) per seat and per month. An annual license is provided with a discount and is available for a rate of EUR 240,00 (plus VAT if applicable) per seat. It is possible to add seats during the course of a year at the discounted rate – reducing the number of discounted seats is excluded and shall only have effect from the beginning of a new billing cycle. Special rates for enterprise customers are available and to be negotiated individually. The fees are payable for the Term and any subsequent Renewal Term, and for the number of seats selected in the Portal (including where the License Agreement is brought to an end prior to expiry of the selected term).

The Supplier has the right to modify or revise the subscription fee at its own discretion, but limited to the cumulative amount of 5% above the then current inflation rate in the EU since the last price adjustment.

Any Payment associated with this Agreement is to be made by credit card. The range of accepted credit cards is outlined in the Portal. Upon separate written agreement, the Supplier may offer additional payment methods, e.g. international bank transfer.

6. Taxes

All amounts stated herein are exclusive of any taxes and customs duties and/or fees payable on import or export of software products or other material procured by the Customer under this Agreement. All of these shall be borne by the Customer.

Given the case that the Customer is obliged by applicable law or by regulatory requirements to withhold tax from any amount invoiced by the Supplier, the Supplier shall have the right to issue a revised invoice which includes the withheld amounts in a way that the amount received by the Supplier would be the same as would have been payable, had no withholding happened.

7. Data Protection

If the Supplier processes any Personal Data on behalf of the Customer when performing its obligations under this Agreement, the Customer shall be the data controller and ensure that it is entitled to transfer the relevant Personal Data to the Supplier so that the Supplier may lawfully use, process and transfer the Personal Data on behalf of the Customer, and the Supplier shall be the data processor, process the Personal Data strictly in accordance with applicable data protection laws and with this Agreement and not for any other purpose, and ensure that only those employees or contractors who may be required by the Supplier to assist in meeting its obligations under this Agreement shall have access to the Customer’s Personal Data.

A violation hereof shall be brought to the other Party immediately, but within three (3) business days at the latest.

8. Confidentiality

The Customer agrees that all items which are not publicly available, and which are subject to the executed licenses and to all new licenses (including program code, documentation hereto, specifications, potential updates and upgrades, and any modifications and enhancements) are trade secrets of the Supplier and are therefore to be handled as confidential information which are to be kept secret. The Customer agrees that appropriate measures are implemented to secure and safeguard all copies of the items subject to this Agreement from unauthorized disclosure, and it shall not disclose such information other than:
- to the Customer’s resources that have a legitimate interest or need to know about that information, including those resources registered in the Portal,
- to the Customer’s governmental and regulatory authorities and auditors responsible for validating the Customer’s affairs,
- to third-party suppliers providing services to the Customer as registered in the Portal, as long as the Customer undertakes measures to secure a degree of confidentiality not less than stated herein.

The Supplier grants to keep confidential all confidential information obtained by the Customer at the same level as the Customer, including internal affairs, software architecture, personal data, client information, and business information.

The term 'confidential information' shall not include information that
- at the time of disclosure is publicly available; or
- subsequently becomes publicly available other than as a breach of the terms of this Agreement by a Party; or
- was already in the receiving Party’s lawful possession prior to the Signature Date (as evidenced to the disclosing Party’s reasonable satisfaction by written records); or
- has subsequently come lawfully into the receiving Party’s possession by providing written evidence to the disclosing Party’s satisfaction; or
- is required to be disclosed by law, regulation, or any governmental authority.

9. Prohibition on Export

Both Parties agree not to export or import services performed under this Agreement to any country prohibited, embargoed or sanctioned under the laws of the United States of America, the European Union, and/or any other relevant jurisdiction, including the transfer of licenses to or their use in such countries.

The Customer is responsible for ensuring that applicable export control regulations, e.g., among others, the International Traffic in Arms Regulations, are met and followed.

10. Warranties, Liability and Indemnity

If during the Release Support Period the Customer discovers that the Base Software fails to conform in a material way with their documentation, while such failure shall not arise out of using or modifying the Base Software other than in accordance with the provisions of this Agreement, the Supplier shall use best efforts to remedy the non-conformance in a way that the Base Software then conform in all material respects with their documentation.

The Supplier warrants that it has the power and authority to license its Base Software and to grant usage rights accordingly, and that to the best of its knowledge no violations or conflicts with applicable law are known with respect to the Base Software.

The Supplier warrants that all licensed products and information shall conform in all material respects with relevant descriptions.

Both Parties warrant to each other that the obligations arising of this Agreement do not violate the terms of another agreement or any other undertaking, judgment, or court order.

Any open-source materials ("OSS") and third-party software shall only be used in accordance with their specific licenses, under which they are distributed. The Supplier does not warrant that any software product, open-source software, or documentation thereto is free from errors, although the Supplier puts high effort into keeping any shared information as exact and precise as possible. Therefore, an uninterrupted or error-free operation of any of the aforementioned is not guaranteed.

THE GRANT OF THE RIGHT AND LICENSE AND THE LICENSED TECHNOLOGY HEREUNDER ARE MADE “AS-IS,” AND THE SUPPLIER HEREBY DISCLAIMS, AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER MATTER WITH RESPECT TO THE BASE SOFTWARE, WHETHER USED ALONE OR COMBINED WITH OTHER PRODUCTS OR SERVICES.

UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR DAMAGES ARISING FROM ANY PROVISION OF THIS AGREEMENT OR FROM TORT OR FROM ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EXCEPT TO THE EXTENT SUCH DAMAGES: (A) ARE INCLUDED IN AN AWARD AGAINST EITHER PARTY RESULTING FROM A THIRD PARTY CLAIM FOR WHICH SUCH PARTY IS INDEMNIFIED HEREUNDER; (B) ARE RELATED TO, OR ARISE FROM, PERSONAL INJURY, DEATH OR DAMAGE TO TANGIBLE PROPERTY; OR (C) ARE RELATED TO OR ARISE FROM WILLFUL OR INTENTIONAL MISCONDUCT, OR FROM GROSS NEGLIGENCE.

The Customer shall defend, indemnify and hold harmless the Supplier from and against all losses, damages, liabilities, judgments, costs and expenses (including reasonable attorneys’ and consultant fees) arising out of or relating to any claims, actions, demands, suits or causes of action by a third party alleging that the use of the Product manufactured by or on behalf of Partner caused any personal injury, death or damage to tangible property.

11. Proprietary Rights

To the extent that a third-party is owner of intellectual property rights in the Base Software, the Customer’s rights and obligations shall be governed by the terms and conditions of the third-party’s applicable license agreements.

The Supplier and its affiliates offer services which are based on Open-Source software products that are publicly available and free to obtain, and its services highly depend, and are to a large extent built based on OSS. Therefore, if not otherwise expressed prior and in written form, it reserves the right to upstream general and non-specific Deliverables to the Open-Source community to the largest extent possible and allowed by applicable law. Any customer will reserve the right to keep confidential the jointly finalized work products, documentation, or other relevant materials, unless prohibited by applicable OSS and/or third-party software terms, or otherwise agreed in writing between the Customer and the Supplier. Oxidize, Ferrocene, defmt, and others are or might become registered trademarks of the Supplier and its affiliates in one or more countries.

Ownership, the copyright and any other intellectual property rights concerning software products which have been developed by the Parties and their affiliates for a broader distribution (“Standard Software Products”) remain their sole property or, if applicable, OSS.

12. Assignment

The license granted by this Agreement is personal to the Customer and its employees or independent contractors. The distribution of the seats subject to the subscription lies within the Customer’s sole discretion, as long as the person is either an employee or an independent contractor of the Customer. The terms of this Agreement will be binding on each Party’s successors. No other assignment shall be made under this Agreement.

13. Force Majeure

If any Party is unable to perform or delayed in performing its obligations under this Agreement, and if the causes for such are beyond its reasonable control, such obligations shall be suspended for as long as the causing event persists.

14. Governing Law, Dispute Resolution

This Agreement shall be governed exclusively by, and construed in accordance with, the laws of the Federal Republic of Germany, without regard to any conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Agreement.

The courts of Berlin have exclusive jurisdiction over any dispute, controversy or claim arising out of or relating to this Agreement, or the breach or termination thereof. Both Parties herewith irrevocably submit to the jurisdiction of such courts.

If any dispute arises in relation to this Agreement which is not to be solved by usual ways of communication, either Party shall prepare and deliver a dispute notice to the other Party. Authorized representatives of the Parties shall meet via an online conferencing tool within 30 days of receipt of the dispute notice in good faith to resolve the dispute before reaching out to court.

15. Miscellaneous

A waiver by any Party to a breach of this Agreement will have no effect on any other breaches of this Agreement and will therefore not constitute a waiver of such, and no waiver will have effect unless made in writing.

This Agreement may not be amended or modified except by an instrument in writing signed by authorized representatives of the Parties, or by modifications selectable in the Portal.

This Agreement constitutes the entire agreement of the Parties hereto with respect to the Base Software and supersedes all prior agreements and undertakings, both written and oral, between the Parties with respect to the Base Software.

SCHEDULE 1 - DEFINITIONS

Affiliate means any entity which controls or is controlled wholly or in parts by the respective Party.

Agreement means these General Terms and Conditions as integral part of the purchasing process of buying Ferrocene over the Portal.

Base Software means the possibility to access the download section in the Portal, the code artifacts and binaries in this section, the unsigned qualification documentation for Ferrocene, and access to a list of known errors and exclusions. Digital signatures of the qualification documents and technical reports provided by assessors are explicitly excluded from the Base Software, and are available separately.

CI/CD means continuous integration and continuous deployment.

Concurrent User means any assignee of a license who is registered in the Portal with its given name and valid e-mail address.

Effective Date means the date referenced in a contractual agreement on which the contract enters into force.

Evaluation Licenses may be granted to selected Customers and individuals who attend trainings, workshops, demonstrations or other exhibitions of the Supplier or any of its Affiliates, without the requirement to financially compensate for the possibility to use the Base Software.

Experimental Features mean features that are explicitly marked as “experimental” in the Portal and in the release notes. Due to their nature, no support or warranties can be provided.

Experimental Releases are marked as “nightly”, “pre-rolling”, “rolling”, or “beta” in the Portal.

Ferrocene is the open-source qualified (ISO 26262 [ASIL D] and IEC 61508 [SIL 4]) Rust compiler toolchain for safety- and mission-critical use.

Major Release means a qualified, stable version of the Ferrocene toolchain, including new features and enhancements.

Open-Source Materials means any code that is licensed or distributed as free / open-source software.

Party or Parties mean individually or collectively the Supplier and the Customer entity who has registered on the Portal.

Patch Release means an update to a Major Release which fixes bugs or security issues.

Personal Data means any information related to an identified or identifiable natural person.

Portal means the Ferrocene self-service website available under https://customers.ferrocene.dev and any related sites which are accessible by the Portal. This includes the Ferrocene payment solution partner “Stripe” and its webpages.

Purchase Date means the calendar date on which the Customer purchases any available services in the Portal.

Release Support Period means the time during which the Supplier commits to providing Patch Releases for a Major Release. Major Releases are subject to a Release Support Period of two (2) years from the release date.

Site means the exact physical location where the purchased Software Products or services are used and/or executed.

Supplier means the vendor or provider of the licensed products and services, Critical Section GmbH.

Support Services are the following:

Bug reports on the binaries you download directly from the Supplier
Bug reports on CriticalUp
Bug reports on our documentation and our safety material
Help with installing and setting up Ferrocene, locally and in CI/CD
Help with CriticalUp

Term or Renewal Term means the period of time during which this Agreement shall be in force.

Third-Party Software means any software which is not property of or maintained by the Supplier.

Untested Features mean features that are explicitly marked as “untested” in the Portal and in the release notes. Due to their nature, no support or warranties can be provided.

VAT means Value-added Tax. Depending on the Customer’s jurisdiction, this may include applicable Sales taxes as well.