1. Climeworks CDR Technology and Carbon Removal Credits
1.1 In these Terms and Conditions for one-off carbon removal purchases applying a single carbon removal method ("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 ("CDR"). These credits are sourced from (i) Climeworks’ own direct air capture projects, or (ii) projects from third-party carbon removal suppliers utilizing various technology - and nature - based carbon removal solutions (collectively referred to as "CDR Solution").
2. Scope of the CDR Solution Agreement
2.1 Customers may purchase Carbon Removal Credits from Climeworks, generated by a specific CDR Solution as defined in the relevant offer and offer acceptance. These Terms and Conditions, in the version existing at the time the order is placed, are incorporated by reference. When using the webshop and customer portal also referred to as customer online dashboard, the privacy policy ("Climeworks Privacy Policy", available under http://climeworks.com/website-privacy-policy), and the terms of use ("Climeworks Website Terms of Use", available under http://climeworks.com/website--terms--use) apply in their version existing at the time the order is placed. The accepted offer, together with these Terms and Conditions, Climeworks Privacy Policy and Climeworks Website Terms of Use, as applicable, collectively constitute the "CDR Solution Agreement".
2.2 To the extent these Terms and Conditions conflict with the Climeworks Website Terms of Use, these Terms and Conditions will prevail. In the event of a conflict between these Terms and Conditions and any offer or offer acceptance the terms of such offer, Invoice or offer acceptance shall prevail. The application of your general terms and conditions is excluded, unless we expressly consented to them in writing.
2.3 The CDR Solution Agreement defines (a) the specific CDR Solution used for the generation of the Carbon Removal Credits, (b) the amount of Carbon Removal Credits to be delivered, including the net quantity of CO2 to be removed from the atmosphere, (c) the specific backstop delivery year of the Carbon Removal Credits and (d) the price of the Carbon Removal Credits ("Fee"). The applied CDR Solution can vary among different carbon removal methods, such as for example Biochar, Bioenergy and Carbon Capture and Storage (BECCS), Enhanced Rock Weathering, Afforestation/Reforestation, or Mangroves.
2.4 The total Fee of the Carbon Removal Credits is exclusive of value added tax (if applicable) in the amount specified by applicable law. Additional charges or taxes are to be borne by you.
3. Delivery of the Carbon Removal Credits
3.1 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 delivery year as specified in the CDR Solution Agreement.
3.2 If Climeworks fails to deliver the full quantity of Carbon Removal Credits by 31 December of the applicable delivery year, Climeworks shall be granted with an extension period to deliver any outstanding Carbon Removal Credits no later than 31 December of the following year.
4. Payment and Assignment
4.1 In case we issue an invoice for payment via bank transfer or equivalent (as opposed to direct payment online via credit card, PayPal or equivalent direct online payment methods) payment is due within 30 (thirty) days to an account indicated by us on the invoice. Any fees or charges related to such payments will be borne by you.
4.2 We are entitled to assign the CDR Solution Agreement, in whole or in part, in particular to affiliates of Climeworks. You can assign the CDR Solution Agreement and/or any of its rights or obligations only with our prior written consent.
5. Liability
5.1 Except as expressly described in the CDR Solution 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 the CDR Solution 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.
5.2 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 the CDR Solution 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.
5.3 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 the CDR Solution Agreement, whether based on contract, tort, or any other legal or equitable theory or resulting from the CDR Solution Agreement, shall not exceed the Fee applicable to the portion of the Carbon Removal Credit deliveries giving rise to liability, and that such remedy is fair and adequate.
6. Intellectual Property
6.1 You are entitled to use any documentation provided as part of the CDR Solution solely to have proof of the CDR attributable to you.
6.2 No further rights are granted under the CDR Solution Agreement, unless they are explicitly granted in any other Climeworks documentation applicable to the CDR Solution 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.
7. Term and Termination
7.1 The provision of CDR Solution Agreement shall terminate once the parties have complied with their obligations under the CDR Solution Agreement.
7.2 In case the 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 CDR Solution Agreement without notice.
7.3 We are entitled to terminate the CDR Solution 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 CDR Solution Agreement pursuant to this section 7.3, we will refund to you all payments for the Carbon Removal Credits not yet delivered upon the effective date of termination.
7.4 Notwithstanding any other provisions in the CDR Solution 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 CDR Solution Agreement.
7.5 If you change your mind, let us know by e-mail to [email protected] within 14 (fourteen) days from the date of your order. If you decide to change your mind, you will be entitled to a full refund, save for any costs we have incurred in preparing and delivering you the Carbon Removal Credits during this period.
7.6 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 5, 6, 7, 8, 9, and 10.8 - 10.13.
7.7 Termination of the CDR Solution Agreement is not an exclusive remedy and all other remedies will remain available.
8. Data Protection
Each party shall comply with applicable data protection legislation in the course of performing its obligations under the CDR Solution Agreement.
9. 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 CDR Solution 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.
10. Miscellaneous
10.1 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.
10.2 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 Agreement.
10.3 If you are under the age required to execute the CDR Solution Agreement 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. If you are a parent or legal guardian, and you allow your child to purchase Carbon Removal Credits, then these Terms and Conditions apply to you and you are responsible for your child's order.
10.4 If any provision of the CDR Solution 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 CDR Solution Agreement shall otherwise remain in full force and effect and be enforceable.
10.5 We may change these Terms and Conditions and other documents forming part of the CDR Solution 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 CDR Solution Agreement. Any and all modifications, waivers or amendments requested by you shall be subject to our written approval.
10.6 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.
10.7 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 the CDR Solution Agreement. You will immediately notify us if you become subject to any such restrictions.
10.8 Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the CDR Solution 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.
10.9 Except as expressly described in the CDR Solution 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 CDR Solution 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.
10.10 The CDR Solution 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 CDR Solution Agreement.
10.11 The CDR Solution 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 CDR Solution 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 CDR Solution 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.
10.12 Each party to the CDR Solution Agreement hereby irrevocably waives its rights to trial by jury in any action or proceedings arising out of the CDR Solution Agreement or an Order Confirmation.
10.13 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.