1. Climeworks CDR Technology
1.1. In these Terms and Conditions for Climeworks CDR Services, Climeworks AG and/or any of its affiliates will be referred to throughout as "Climeworks", "our", "we", or "us".
1.2. We have developed a technology to capture CO₂ from ambient air and build and operate equipment applying this technology. We combine this technology with geological storage of CO₂ (for example carbon mineralization), performed by third parties contracted by Climeworks, to complete the removal of CO₂ from the atmosphere. The CO₂ is stored in the deep underground in order to remain removed from the atmosphere for a geological timescale. We refer to the combined process as Climeworks Carbon Dioxide Removal ("Climeworks CDR").
1.3. This combined process is used to provide Climeworks CDR services ("Climeworks CDR Services").
2. Ordering Climeworks CDR Services
2.1. Climeworks CDR Services can be ordered from Climeworks AG on our website or through a Climeworks sales representative. For orders through a Climeworks sales representative, any agreement as regards Climeworks CDR Services ("Agreement") shall be subject to the offer sent by Climeworks and executed by you within its validity period ("Offer") and these terms and conditions for Climeworks CDR Services ("Terms and Conditions") in the version existing at the time the order is placed. For purchases via website, any Agreement shall be subject to the order confirmation sent by Climeworks ("Order Confirmation"), these Terms and Conditions, the privacy policy ("Climeworks Privacy Policy", available here) and the terms of use ("Climeworks Website Terms of Use", available under here), in each case, in their version existing at the time the order is placed.
2.2. In case you have purchased a subscription, the applicable Terms and Conditions, Climeworks Privacy Policy and Climeworks Website Terms of Use applying to each invoiced Service Quantity are the versions of these documents in effect at the time of each invoice. In particular, the applicable version of the Terms and Conditions is referenced with a weblink in each invoice you receive in your Climeworks customer portal. Capitalized terms used in this Agreement and not otherwise defined (either in-line or by hyperlink) have the same meaning as in the Climeworks Website Terms of Use. To the extent these Terms and Conditions conflict with the Climeworks Website Terms of Use, these Terms and Conditions will prevail, but solely as applicable to the Climeworks CDR Services.
2.3. In the event of a conflict between these Terms and Conditions and any Offer or Order Confirmation, as applicable, the terms of such (or the most recent) Offer or Order Confirmation, as applicable, shall prevail. The application of your general terms and conditions is excluded, unless we expressly consented to them in writing.
3. Minimum Age
3.1. If you are under the age required to order Climeworks CDR Services under the applicable law, you must have your parent or legal guardian's permission to do so. Please have your parent or legal guardian read these Terms and Conditions with you.
3.2. If you are a parent or legal guardian, and you allow your child to purchase the Climeworks CDR Services, then these Terms and Conditions apply to you and you are responsible for your child's order.
4. Scope of Climeworks CDR Services
4.1. Climeworks will remove the net quantity of CO₂ as described in the Offer or Order Confirmation, as applicable, ("Service Quantity") from the atmosphere by performing Climeworks CDR. We will capture CO₂ from ambient air at one or several units operated by or on behalf of us (each, a "Climeworks Plant"). The captured CO₂ is provided by or on behalf of us to one or several third parties that perform subsequent storage of such CO₂.
4.2. The Service Quantity is conclusively determined by a mass flow meter in the Climeworks Plant. CO₂emissions caused by the Climeworks CDR process are deducted and only the removal of the net quantity of CO₂ is sold to you.
4.3. The Climeworks CDR Services are completed once the Service Quantity has been removed from the atmosphere by means of Climeworks CDR.
5. Pricing for Service Quantity
5.1. The price of the Climeworks CDR Services for the Service Quantity quoted in the Offer or Order Confirmation, as applicable, includes the subsequent storage of the CO₂.
5.2. For purchases via our website, depending on your country of residence if you are a private customer, or your country of establishment if you are a company, trust, sole trader or equivalent, prices may be quoted as net prices and may not include value added tax. Upon selection of your country of residence or country of establishment, as applicable, in the check-out page, the check-out price is inclusive of value added tax (if applicable) in the amount specified by applicable law. Additional charges or taxes are to be borne by you.
5.3. For purchases via a Climeworks sales representative, depending on your country of residence if you are a private customer, or your country of establishment if you are a company, trust, sole trader or equivalent, prices shall be quoted exclusive of value added taxes, which may be applicable.
6. Climeworks CDR Services Confirmation
6.1. Climeworks will complete the Climeworks CDR Services for the Service Quantity as described in any Offer or Order Confirmation, as applicable, until 31 December of the 6th (sixth) year following the invoice date.
6.2. If you have purchased a subscription for Climeworks CDR Services, a confirmation stating the Service Quantity attributable to you will be made available to you at the end of each year until the Service Quantity purchased has been fully delivered.
6.3. If you have purchased Climeworks CDR Services for a one-time Service Quantity a confirmation stating the Service Quantity attributable to you will be made available to you at the end of the year where the Service Quantity purchased has been fully delivered.
7. Payment and Assignment
7.1. When ordering through our website, the payment of the amount charged for the provision of the Climeworks CDR Services ("Climeworks CDR Service Fee") is typically made by credit card according to the billing cycle chosen by you, unless stated otherwise in the Order Confirmation.
7.2. In case we issue an invoice for the Climeworks CDR Service Fee, payment is due within 30 (thirty) days to an account indicated by us. Any fees or charges related to such payments will be borne by you.
7.3. We are entitled to assign this Agreement, in whole or in part, in particular to affiliates of Climeworks. You can assign this Agreement and/or any of its rights or obligations only with our prior written consent.
8. Liability
8.1. Except as expressly described in this agreement, neither party makes, and each party expressly disclaims, any and all representations or warranties whatsoever, whether express, implied or statutory, with respect to the services to be provided under this agreement, including warranties with respect to merchantability, or suitability or fitness for a particular purpose, non-infringement, and any warranties arising from course of dealing, course of performance or trade usage.
8.2. To the maximum extent permitted by applicable law, neither party shall be liable to the other, regardless of the legal theory used to make a claim, and whether or not based upon negligence, breach of warranty, strict liability, in tort or any other cause of action, for any: (a) cost of procurement of any substitute services; (b) delays or unavailability of the Climeworks CDR Services, economic losses, expected or lost profits, revenue, or anticipated savings, loss of business, loss of contracts, loss of or damage to goodwill or reputation or third party claims; (c) any acts and omissions of its sub-contractors and/or, (d) indirect, special, incidental, punitive, or consequential loss or damage, whether arising out of performance or breach of this agreement, or for any matter beyond the party's reasonable control, even if the party has been advised as to the possibility of such loss or damages.
8.3. To the maximum extent permitted by applicable law, each party agrees that the maximum aggregate liability of either party for all claims of any kind under this agreement, whether based on contract, tort, or any other legal or equitable theory or resulting from this agreement or the Climeworks CDR Services, shall not exceed the Climeworks CDR Services Fee applicable to the portion of the Service Quantity giving rise to liability, and that such remedy is fair and adequate.
9. Intellectual Property
9.1. You are entitled to use any documentation provided as part of the Climeworks CDR Services solely to have proof of the Service Quantity attributable to you.
9.2. No further rights are granted under this Agreement, unless they are explicitly granted in any other Climeworks documentation applicable to this Agreement. In particular, no other license, rights of use and/or ownership of any kind of Climeworks' intellectual property are granted and all know-how, patents, trademarks, tradenames, designs, logos, copyrights, manufacturing or business secrets and all other intellectual property owned by Climeworks shall remain the exclusive and unrestricted property of Climeworks.
10. Term and Termination
10.1. The provision of Climeworks CDR Services and this Agreement shall terminate once the parties have complied with their obligations under this Agreement.
10.2. In case the Climeworks CDR Service Fee or any other agreed payment is not received by Climeworks within the payment period set by us, we shall be entitled to terminate this Agreement without notice.
10.3. We are entitled to terminate this Agreement without cause and at our sole discretion with 3 (three) months end of the month prior written notice to you. If we terminate the Agreement pursuant to this section 10.3, we will refund to you all payments for Climeworks CDR Services not yet performed upon the effective date of termination.
10.4. Notwithstanding any other provisions in this Agreement, we are entitled to suspend performance of Climeworks CDR Services effective immediately in case you are in default or otherwise fail to comply with your obligations under this Agreement.
10.5. If you have purchased a subscription for Climeworks CDR Services, you may manage your subscription at any time with effect for the following period (for example month). To terminate or modify your subscription under this Agreement, you can simply click on the corresponding link in our reminder e-mail, manage your settings accordingly or send us an e-mail (no signature required) to [email protected]. We will send you a confirmation e-mail.
10.6. If you change your mind, let us know by e-mail to [email protected] within 14 (fourteen) days from the date you order Climeworks CDR Services. If you decide to change your mind, you will be entitled to a full refund, save for any costs we have incurred in delivering you the Climeworks CDR Services during this period.
10.7. Any Climeworks CDR Services ordered before the effective termination of this Agreement shall be delivered in accordance with the terms of this Agreement.
10.8. Provisions that, by their explicit or implied terms, are meant to survive termination or expiration shall continue irrespective of such termination or expiration. This applies in particular to sections 2.1. 6, 8, 9, 10, 11.2, 11.7, 11.8, 11.9, 11.10.
10.9. Termination of this Agreement is not an exclusive remedy and all other remedies will remain available.
11. Data Protection
Each party shall comply with applicable data protection legislation in the course of performing its obligations under the Agreement.
12. Public Communication
All public communication including, in particular, any advertising, press releases, public announcements, or public disclosures, including those at the occasion of commercial or research conferences, by the customer related to the Agreement is subject to the prior written explicit approval (e-mail is sufficient) of Climeworks, which also shall be contingent on specifically agreed-upon messaging. Such approval is required irrespective of whether Climeworks’ name, trademarks, tradenames, designs, logos, copyrights are included in the desired public communication. The terms and conditions as defined in section 9 above remain applicable in any case.
13. Miscellaneous
13.1. For purchases via a sales representative, any notice required or permitted hereunder shall be sent at the recipient's address as indicated on the Offer.
13.2. For purchases via website, Any notice required or permitted hereunder shall be sent at [email protected] (if addressed to Climeworks) or at your e-mail address, as specified in the Order Confirmation (if addressed to you).
13.3. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be replaced by a valid and enforceable provision reflecting the economic intent of the parties or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable.
13.4. We may change these Terms and Conditions and other documents forming part of the Agreement from time to time. We will notify you by email at least 30 (thirty) days before the date they become effective. Once such changes are in effect, you will be bound by them, unless you have terminated your order. Any and all modifications, waivers or amendments requested by you shall be subject to our written approval.
13.5. Climeworks CDR Services may be subject to U.S. trade controls and sanctions laws and regulations, including but not limited to the U.S. Export Administration Regulations and the sanctions laws and regulations administered by the U.S. Office of Foreign Assets Control ("OFAC"), as well as the trade controls and sanctions of any other jurisdictions in which customer operates (collectively, "Trade Controls"), and, in such case, may only be exported, reexported, or transferred in accordance with applicable requirements. If applicable, it is your responsibility to: (a) provide us with the necessary information for us to comply with Trade Controls; (b) ensure all end-uses and end-users relating to customer's reexports and retransfers of the Climeworks CDR Services comply with Trade Controls; and, (c) refrain from taking any action that causes us to violate Trade Controls.
13.6. You represent that you are not subject to restrictions under any U.S. government restricted end user list, including but not limited to the U.S. BIS Entity List, U.S. BIS Denied Persons List, or the OFAC List of Specially Designated Nationals, and are not 50% or more, directly or indirectly, owned or controlled by any individuals or entities identified on such lists, and that you shall not engage any person subject to the foregoing restrictions to provide any goods or services for you in connection with your obligations under this Agreement. You will immediately notify us if you become subject to any such restrictions.
13.7. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control. The party subject to such event shall: (a) give the other party notice of such event within 30 (thirty) days; and, (b) use appropriate and commercially reasonable efforts to minimize or remove the effects of the event and to resume the performance affected by such event.
13.8. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
13.9. This Agreement and each Offer or Order Confirmation, as applicable, shall be governed by the laws of Switzerland without reference to its choice of law principles. The United Nations Convention on the International Sale of Goods (CISG) shall not apply. The parties to this Agreement consent to the exclusive jurisdiction of the appropriate courts Zurich, Canton of Zurich, Switzerland, for any legal or equitable action or proceeding arising out of, or in connection with, this Agreement, an Offer or an Order Confirmation, as applicable. You specifically wave any and all objections to venue in such courts. Nothing herein shall preclude us from seeking equitable injunctive relief in any jurisdiction or court, in the event that we perceive that without such relief, serious harm may be done to our interests.
13.10. Each party to this Agreement hereby irrevocably waives its rights to trial by jury in any action or proceedings arising out of this Agreement or an Order Confirmation.
13.11. You shall defend us against any third-party claim asserted against us arising from or relating to your violation of applicable law and indemnify and hold us harmless from and against related costs, attorneys' fees, and damages, if any, finally awarded pursuant to a non-appealable order.