1. Climeworks CDR Technology
1.1. In these Terms and Conditions for Climeworks CDR Portfolio agreements ("Terms and Conditions"), 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.
1.3. We offer our customers carbon removal credits ("Carbon Removal Credits"), each representing the removal of a specified quantity of carbon dioxide from the atmosphere. These credits are sourced from (i) Climeworks’ own direct air capture projects, and (ii) projects from third-party carbon removal suppliers utilizing various technology-based and nature-based carbon removal solutions (collectively referred to as the "Climeworks CDR Portfolio").
2. Ordering Climeworks CDR Portfolio
1. Customers may purchase a Climeworks CDR Portfolio through (i) the Climeworks carbon removal store, also referred to as "Webshop", or (ii) a Climeworks Strategic Account Manager. For orders through a Climeworks Strategic Account Manager, any agreement as regards a Climeworks CDR Portfolio shall be subject to (i) the offer sent by Climeworks ("Offer") and executed by you within its validity period, and (ii) these Terms and Conditions in the version existing at the time the order is placed. For purchases via the Webshop, any agreement shall be subject to (i) the order confirmation sent by Climeworks ("Order Confirmation"), (ii) these Terms and Conditions, (iii) the privacy policy ("Climeworks Privacy Policy", available under http://climeworks.com/website-privacy-policy), and (iii) the terms of use ("Climeworks Website Terms of Use", available under http://climeworks.com/website--terms--use), in each case, in their version existing at the time the order is placed. The accepted Offer and/or the Order Confirmation, together with these Terms and Conditions, Climeworks Privacy Policy and Climeworks Website Terms of Use, as applicable, are collectively referred to as "Agreement".
2.2. 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 Portfolio. 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 Portfolio 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 Portfolio, then these Terms and Conditions apply to you and you are responsible for your child's order.
4. Scope of Climeworks CDR Portfolio
4.1. Climeworks will remove the net quantity of CO2 as defined in the Agreement ("Service Quantity").
4.2. The standard Climeworks CDR Portfolio offered via the Webshop consists in a carbon removal portfolio of nature-based and engineered carbon removals ("Standardized Climeworks CDR Portfolio").
The Standardized Climeworks CDR Portfolio offered via the Webshop is split into two (2) carbon removal categories:
A – Technology-based carbon removal solutions
B – Nature-based carbon removal solutions
A includes highest quality carbon removals via Climeworks’ own Direct Air Capture facilities, as well as engineered CDR methods Enhanced Rock Weathering and/or Bioenergy with Carbon Capture and Storage ("BECCS") and/or other engineered carbon removal solutions.
B includes carbon removals via Afforestation, Reforestation, Mangroves and/or Biochar and/or other nature-based carbon removal solutions.
4.5. Climeworks will choose i) the specific third-party carbon removal suppliers for the delivery of the third-party carbon removal credits and b) the allocation of the relevant carbon removal quantity to the specific third-party carbon removal suppliers at our sole discretion. For the carbon removals via Direct Air Capture, we will capture the relevant quantity of 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.
5. Pricing for Service Quantity
5.1. The price of the Climeworks CDR Portfolio for the Service Quantity defined in the Agreement, includes the subsequent storage of the CO2.
5.2. For purchases via the Webshop, 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 Strategic Account Manager, 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. Delivery of the Carbon Removal Credits
Climeworks will retire the Carbon Removal Credits in the relevant carbon removal registry on behalf of you and deliver the relevant delivery note and carbon removal certificate until 31 December of the 7th (seven) year following the invoice year.
7. Payment and Assignment
7.1. When ordering through our Webshop, the payment of the amount charged for the Climeworks CDR Portfolio ("Climeworks CDR Portfolio Fee") is typically made by credit card unless stated otherwise in the Order Confirmation.
7.2. In case we issue an invoice for the Climeworks CDR Portfolio 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 the Agreement, in whole or in part, in particular to affiliates of Climeworks. You can assign the 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 and or products 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 Carbon Removal Credits, 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 the Agreement, shall not exceed the Climeworks CDR Portfolio 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 Portfolio solely to have proof of the Service Quantity attributable to you.
9.2. No further rights are granted under the Climeworks CDR Portfolio Agreement, unless they are explicitly granted in any other Climeworks documentation applicable to the Agreement. In particular, no other license, rights of use and/or ownership of any kind of Climeworks' or the third-party carbon removal suppliers’ 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 and/or third-party carbon removal suppliers shall remain the exclusive and unrestricted property of Climeworks and/or third-party carbon removal suppliers.
10. Term and Termination
10.1. The provision of Climeworks CDR Portfolio and the Climeworks CDR Portfolio Agreement shall terminate once the parties have complied with their obligations under the Climeworks CDR Portfolio 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 the Agreement without notice.
10.3. We are entitled to terminate the 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 the Carbon Removal Credits not yet delivered upon the effective date of termination.
10.4. Notwithstanding any other provisions in the Agreement, we are entitled to suspend the delivery of Carbon Removal Credits effective immediately in case you are in default or otherwise fail to comply with your obligations under the Agreement.
10.5. If you change your mind during this period, let us know by e-mail to [email protected] within 14 (fourteen) days from the date you order the Climeworks CDR Portfolio. If you decide to change your mind during this period, you will be entitled to a full refund, save for any costs we have incurred in preparing and delivering you the Carbon Removal Credits.
10.6. 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, 12, 13.7, 13.8, 13.9, 13.10, 13.11, 13.12.
10.7. Termination of the 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 Climeworks Strategic Account Manager, any notice required or permitted hereunder shall be sent at the recipient's address as indicated on the Offer.
13.2. For purchases via the Webshop, 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 the 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 the 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 in accordance with the terms and conditions of the Agreement. Any and all modifications, waivers or amendments requested by you shall be subject to our written approval.
13.5. The delivery of the Carbon Removal Credits 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 Carbon Removal Credits 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 the 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. Except as expressly described in the Agreement, neither party makes, and each party expressly disclaims, any and all representations or warranties whatsoever, whether express, implied or statutory, including with respect to the services and/or products to be provided under the Agreement and the Carbon Removal Credits, and, without limiting the foregoing, Climeworks expressly disclaims any and all representations or warranties with respect to the merchantability, potential use, fitness for any particular purpose, and/or acceptance of the Carbon Removal Credits under current or future applicable laws and regulations governing a carbon removal credit compliance market.
13.9. The 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 the Agreement.
13.10. The Agreement 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 the 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, the Agreement. 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.
13.11. Each party to the Agreement hereby irrevocably waives its rights to trial by jury in any action or proceedings arising out of the Agreement or an Order Confirmation.
13.12. 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.