Purestream Services LLC
STANDARD TERMS AND CONDITIONS OF SALE Relating to Product Sales; Provision of Services and Rentals
1. Definitions.
‘Purestream’ means Purestream Services, LLC - a Delaware LLC.
‘Customer’ means any person or entity that purchases goods and / or services from Purestream or rents equipment from Purestream.
‘Product’ means any physical equipment sold or rented by Purestream to the Customer or used in Services provided to the Customer.
‘Services’ means services contracted to be provided by Purestream to the Customer which Services may or may not include use of Product.
‘Warranty Period’ means the period of 12 calendar months from and including the first date of shipment of the Product to the Customer or in the case of Services provision, 12 months from the date of provision of that part of the Services to which the Warranty Period is being applied.
‘Work Order’ means any order, request or agreement for a Product to be supplied by Purestream, either by way of sale or rental, or for Services to be provided by Purestream such Work Order being agreed in writing and signed by or on behalf of the Customer and Purestream.
‘Agreement’ means these Terms and Conditions of Sale together with any applicable Work Order ‘Product Sale’ means when Purestream agrees to sell to a Customer and the Customer agrees to purchase from Purestream, a Product the title to which is intended to pass to the Customer
“Party’ means a party to an Agreement and “Parties’ means both or all Parties to this Agreement as the context provides.
2. Warranties.
(i) On a Product Sale. Purestream provides a warranty on all its Product Sales for the duration of the Warranty Period. This warranty covers defects in materials and workmanship on all parts and components provided the Product has at all times been used and maintained in strict accordance with the instructions and recommendations contained or referred to in the Purestream Operation and Maintenance Manual for such Product. Purestream further warrants that it is the owner of any Product comprised in the sale Agreement and subject thereto is able to transfer unencumbered title in the Product to the Customer
(ii) In the provision of Services. Purestream warrants that its work in providing Services for the Customer will be of a professional standard to at least the standard typical in the industry for the kind of work involved, subject always to any specific performance criteria set out or required in accordance with any applicable Work Order, and provided always that where Purestream meets such specific performance criteria it shall be deemed to have complied with the terms of this section 2.(ii)
(iii) Product Rentals. Purestream warrants that it is the owner of the Product being rented by the Customer with unencumbered title and the right and ability to enter into any rental contract in the Agreement but does not warrant any fitness for purpose or merchantable quality which are matters for the Customer to determine prior to rental.
(iv) In any case on a Product Sale where a component of a Product is or may be faulty and the component is covered under the warranty of a third party then the Customer shall first pursue a claim under the third-party warranty before making a claim under any warranty from Purestream. Purestream shall provide reasonable assistance in respect of such claim under the third-party warranty.
(v) In all cases Purestream warrants that its Products and its proprietary technology comprised therein do not infringe the intellectual property rights of others and shall indemnify the Customer in relation to any awards made from successful claims by third parties for breach of intellectual property rights relating thereto.
(vi) THE ONLY WARRANTY OR WARRANTIES GIVEN BY PURESTREAM ARE THOSE SPECIFICALLY CONTAINED OR REFERRED TO IN AN AGREEMENT AS DEFINED ABOVE. ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE, ARE EXPRESSLY DISCLAIMED TO THE FULL EXTENT LAWFULLY ALLOWED.
(vii) Any warranty given by Purestream contained or referred to herein is not transferable under any circumstances and shall be rendered void in the event of any failure or underperformance of the Product caused or contributed to by, among other things:
a. accident, force majeure or acts of God, use of unapproved chemicals; electrical surges, overloading and power or water or feed supply fluctuations, non-compliance with agreed feed specifications; misuse, willful damage or neglect; breach of Customer’s obligations or Customer’s failure to adequately perform or provide,
b. unauthorized or sub-standard repairs, or performance by Customer; unauthorized modifications or alterations to any Product by Customer; (all such authorizations to be approved by Purestream in writing); delay or lack of timely action by Customer,
c. use that in any way is not in strict conformity with the instructions, recommendations and requirements of Purestream’s Operation and Maintenance Manual relevant to the Product plus any use not in accordance with any additional or subsequent instructions given by Purestream to the Customer relating to the use and operation of the Product.
3. REMEDIES FOR BREACH OF WARRANTY.
THE CUSTOMER’S EXCLUSIVE AND ONLY REMEDY IN THE EVENT OF BREACH OF WARRANTY HEREUNDER SHALL BE AS FOLLOWS:
(a) RELATING TO A PRODUCT SALE: UPON CUSTOMER NOTIFYING PURESTREAM IN WRITING OF AN ALLEGED BREACH AND OF PURESTREAM ACCEPTING THAT A BREACH HAS OCCURRED, PURESTREAM SHALL, WITHIN A REASONABLE AMOUNT OF TIME TAKING INTO ACCOUNT ALL PRACTICALITIES AND ITEM DELIVERY LEAD TIMES, REPAIR OR REPLACE, AT THE SOLE DISCRETION OF PURESTREAM, SUCH PART, PARTS AND COMPONENTS OF THE PRODUCT AS HAVE FAILED DURING THE WARRANTY PERIOD BY REASON OF PURESTREAM’S BREACH OF WARRANTY. THE CUSTOMER SHOULD FIRST OBTAIN PURESTREAM’S ACKNOWLEDGEMENT OF THE ALLEGED BREACH OF WARRANTY AND THEREAFTER IF ACCEPTED BY PURESTREAM SHALL RETURN SUCH FAILED COMPONENTS TO PURESTREAM (OR TO ELSEWHERE IF NOTIFIED ACCORDINGLY BY PURESTREAM IN WRITING) TOGETHER WITH A WRITTEN EXPLANATION OF THE FAILURE. UPON SUCH REPAIR OR REPLACEMENT BEING COMPLETED BY PURESTREAM THE PART OR PARTS SHALL BE RETURNED TO THE CUSTOMER. INSTALLATION OF THE REPAIRED OR REPLACED PART OR COMPONENT SHALL AT PURESTREAM’S DISCRETION BE CARRIED OUT BY THE CUSTOMER IN ACCORDANCE WITH PURESTREAM’S INSTRUCTIONS OR BY PURESTREAM’S PERSONNEL. ALL PACKING, UNPACKING, ASSEMBLY AND INSTALLATION OF THE REPAIRED OR REPLACED PARTS / COMPONENTS AT THE CUSTOMER’S SITE SHALL BE AT THE CUSTOMER’S EXPENSE. THIS WARRANTY APPLIES ONLY TO EQUIPMENT MANUFACTURED OR SOLD BY PURESTREAM.
(b) RELATING TO SERVICES PROVIDED UPON CUSTOMER NOTIFYING PURESTREAM IN WRITING OF AN ALLEGED BREACH AND OF PURESTREAM ACCEPTING AT THE SOLE DISCRETION OF PURESTREAM THAT A BREACH HAS OCCURRED, PURESTREAM SHALL, WITHIN A REASONABLE AMOUNT OF TIME TAKING INTO ACCOUNT ALL PRACTICALITIES, REMEDY OR RE-PERFORM ANY SERVICES PROVIDED THAT ARE BELOW THE WARRANTY STANDARD REFERRED TO IN SECTION 2 (ii) ABOVE.
4. LIMITATION OF LIABILITY.
TO THE FULL EXTENT PERMITTED BY LAW IN NO EVENT SHALL PURESTREAM BE LIABLE TO THE CUSTOMER FOR ANY OF THE FOLLOWING WHETHER ARISING IN CONTRACT OR TORT OR UNDER ANY STATUTORY PROVISION OR BY OPERATION OF LAW:
a. IN RELATION TO A PRODUCT SALE, ANY AMOUNT THAT EXCEEDS THE PRICE CHARGED FOR THE PRODUCT SUPPLIED OR ONE MILLION US DOLLARS WHICHEVER IS THE LESSER;
b. IN RELATION TO PROVISION OF SERVICES OR PRODUCT RENTAL, ANY AMOUNT THAT EXCEEDS THE TOTAL AMOUNT CHARGED FOR THE MOST RECENT MONTH OF SERVICES OR RENTAL CHARGES;
c. ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES;
d. ANY DAMAGES FOR OR IN ANY WAY RELATING TO LOSS OF PROFITS, INTERUPTION OF BUSINESS, OR PROPERTY DAMAGE.
THE PARTIES ACKNOWLEDGE AND ACCEPT THAT THE PRICES CHARGED FOR THE PRODUCT, SERVICES OR RENTAL IN THE AGREEMENT HAVE BEEN CALCULATED ON THE BASIS OF THE LIMITED LIABILITY PROVISIONS IN THIS CLAUSE 4 WITHOUT WHICH SUCH PRICES WOULD HAVE BEEN SIGNIFICANTLY HIGHER AND OTHER AGREEMENT TERMS ADJUSTED.
5. Entire Agreement.
These Terms and Conditions together with the accompanying Work Order (if any) constitute the entire Agreement between Purestream and the Customer and supersedes all prior agreements and discussions (if any) between Purestream and the Customer relating to the subject matter hereof and the Customer hereby agrees that in entering into this Agreement with Purestream including the preparation of any relevant Work Order thereto the Customer has not in any way relied upon any representations from or on behalf of Purestream whether oral or in writing. No variation, addition or alteration to these Terms and Conditions or to a Work Order shall be valid except where specified in writing and signed by an authorized person on behalf of both Purestream and the Customer. In the event that the Customer requests (orally or otherwise) work to be carried out by Purestream and yet submits no Work Order or other written request or confirmation for the same then requesting and allowing Purestream to commence work shall constitute acceptance of the terms and conditions.
6. Additional Work.
In the event that during the continuance of this Agreement the Customer requests that Purestream carry out additional work of any kind outside of the scope of that comprised in the Work Order then in the absence of any written documentation signed by both Parties relating thereto, the Parties hereby agree that such additional work shall be charged to the Customer at cost plus twenty-percent mark-up.
7. Governing Law.
This Agreement between Customer and Purestream shall be governed and construed according to the laws of the State of Utah. Both Purestream and the Customer irrevocably agree and submit to the exclusive jurisdiction of the courts of Salt Lake County in respect to all matters arising out of this Agreement.
8. Severability.
Any provision that is held to be unlawful or unenforceable under any applicable law shall not invalidate the remaining provisions of this Agreement and to the extent that any such unlawful provision may be made lawful and enforceable by a modification in time or extent then such minimum modification as is necessary to make the said unlawful provision lawful is hereby agreed and shall form part of this Agreement.
9. Taxes and Other Financial Impositions.
Unless specifically stated otherwise in the relevant Work Order all taxes, government (federal, state or local) charges and other financial impositions in any way relating to the Agreement, Product or Services (other than taxes imposed on the profit of Purestream) shall be paid by the Customer additional to the price charged by Purestream.
10. Shipping.
Unless specifically stated otherwise in the relevant Work Order all shipping, loading and unloading of Product for delivery to the Customer is to be the obligation of the Customer carried out at the Customer’s risk and expense additional to any price charged by Purestream. All claims for damage during transit, or any delay or shortage arising from such Product shipping shall be made by Customer directly against the carrier and shall not be the responsibility of Purestream. Customer shall inspect (or failing such inspection shall be deemed to have inspected) the Product prior to the Product being loaded and shall notify Purestream of any damage or shortage prior to departing Purestream's premises. Failure to follow the provisions of this Section 10 shall constitute acceptance by Customer that the Product is received without damage and in good order.
11. Insurance.
Whether in the case of Product sale by Purestream to the Customer; rental by the Customer or Product deployment as part of Services provided to the Customer the Customer shall insure for the benefit of Purestream (a) the Product to full replacement value against all risk of loss or damage and (b) for all third party liability in any way related to the Product, such insurance to be from the date of shipment and throughout the period of the rental or Services provision, or if a sale then till the invoice is paid in full.
12. Statutory and Regulatory Compliance.
The Customer shall be solely responsible at its own cost for all statutory and regulatory compliance of whatever kind relating to Product or to the provision of Services by Purestream (including without limitation all applicable provisions relating to the environment and emissions); for all permitting and approvals necessary or required relating to the Product or its operation and except where operated by Purestream’s personnel, for health and safety compliance in operation of Product, and Customer fully indemnifies Purestream for all costs and expenses howsoever arising relating thereto including without limitation full legal fees, costs and expenses. Unless otherwise specifically stated in the Work Order Purestream makes no representations nor gives any warranty in respect of any compliance or statutory or regulatory position with regard to the above.
13. Priority.
In the event of any conflict between these Standard Terms and Conditions of Sale and an applicable Work Order then the applicable Work Order shall prevail.
14. Intellectual Property Rights.
Purestream retains all rights to its intellectual property of all kinds comprised in any Product sold or rented to the Customer except the Customer shall receive a royalty free non-transferable license to utilize such intellectual property comprised in the Product sold or rented for the purpose only of operating the Product purchased or rented from Purestream for the sole benefit of the Customer and where rented only for the duration of the rental agreement. Such license shall not extend to any situation in which the Product may be used in performing services for third parties or to compete with the business of Purestream and the Customer acknowledges that other than the specific rights to intellectual property of Purestream contained in this clause it has not and will not obtain or claim any intellectual property rights pertaining to the Product. All intellectual property rights created or arising during the course of Purestream’s work for the Customer or in the provision of the Services shall be the sole and exclusive property of Purestream and the Customer shall execute such documentation as may be necessary to give effect thereto.
15. Site and Ancillary Matters.
Unless otherwise specified in a relevant Work Order the Customer shall be solely responsible at the Customer’s expense for site provision and preparation, pad, all connections, power, waste disposal, secondary containment, ancillary equipment, access and egress, and any other site related matters necessary for or attendant upon installing, testing, operating the Product, demobilization or providing the contracted Services at the contracted location. The Customer shall ensure there is free and unhindered access to the Product and area of its installation or Service provision and an adequate three-dimensional envelope of space of a minimum of fifteen feet clearance around the whole installation during both installation and ultimate removal. The Customer agrees it has exercised all due diligence in ascertaining such site requirements and the provision of the same and that the price agreed with Purestream for the Product reflects this and is a material consideration for both Parties. If the Customer fails to comply with this Section 15 or makes changes on site that make equipment installation, operation or removal more costly than under compliance herewith the Customer shall be responsible for such difference.
16. Title.
In the case of a Product Sale to the Customer, title to the Product shall not pass to the Customer until all amounts owing to Purestream by the Customer have been paid in full together with all taxes, charges and other impositions applicable thereto but all risk shall pass to the Customer as agreed in the Work Order or, on a sale of Product, upon delivery to the Customer.
17. Price Escalation.
In the event that Purestream can reasonably demonstrate that the market and actual cost of acquiring any materials comprised in a Product to be sold, or in Services to be provided by Purestream, have increased by ten percent or more from the initial Work Order date then such additional costs may be added to the price payable by the Customer under the Work Order.
18. Confidentiality.
Purestream and the Customer shall keep confidential the terms of this Agreement including without limitation Product price and price for Services or for rental and shall not reveal any details of the same to any third party except professional advisers or funders on a ‘need to know’ basis.
19. Product and Services Dates.
Regarding any agreed dates and timelines in any Agreement relating to the manufacture and / or delivery of the Product or Services by Purestream to or for the Customer, these are best estimates and Purestream shall use reasonable commercial efforts to comply with such dates and to minimize any delays but shall not be responsible for any loss, cost or expense of the Customer or others arising from not meeting such dates or associated with or arising from any delays thereto and such delays shall not constitute breach of contract by, or incur any liability to, Purestream.
20. Liens, Encumbrances etc.
In the case of Product being rented by the Customer or being part of Services provided then such product shall at all times remain the property of the Company and the Customer shall have no right, title or interest in the same other than expressly stated in the Agreement. During the continuation of the Agreement the Customer shall not allow any such rented or Services Product to become the subject of any claim, lien, mortgage, pledge or other encumbrance nor claim any right therein other than specifically granted by this Agreement.
21. Operational Downtime.
Operational downtime of any Product for repair, maintenance or replacement during the continuance of the Agreement, or where applicable, during the Warranty Period, shall not in any way constitute a breach of the Agreement by Purestream nor give rise to any liability of any kind on the part of Purestream. Where any failure or repair is the responsibility of Purestream, Purestream shall use commercially reasonable efforts to keep to a minimum any time required for such repair and maintenance but shall not be obliged to hold an inventory of spare parts for any Product.
22. Assignment.
This Agreement and all Purestream’s rights hereunder may be assigned at any time by Purestream. The Customer may with the written consent of Purestream assign its rights and obligations under this Agreement but not otherwise.
23. Notices.
Any notice required or permitted to be given under this Agreement must be in writing and may be given by delivering or e-mailing the notice to the other Party at the address or email address indicated below. Any such notice shall be deemed to have been given on the day of delivery or email arrival.
Purestream Address : 770 Komas Drive, Salt Lake City, Utah 84108; Purestream email:
Customer Address and Customer email : As given in the Work Order or other documentation or emails received from the Customer.
24. Non-solicitation / Employment.
Without obtaining the prior written consent of Purestream the Customer shall not during and for a period of twelve months after the termination of this Agreement engage or employ, nor solicit to engage or employ, whether directly, or indirectly via any third party or entity, any employees or ex-employees of Purestream who have been engaged in any way in the provision of Services hereunder.
25. Waivers.
No delay in exercising, or failure to exercise, any right or remedy accruing to the Company under this Agreement will impair or waive such right or remedy, nor will a specific waiver of any breach be deemed a waiver of any other prior, subsequent or concurrent breach. Any waiver, permit, consent or approval on the part of Company in respect to this Agreement must be in writing and signed by an authorized officer of Purestream and shall have effect only to the extent specifically set forth in such writing.
26. Third-Party Benefit.
The obligations of Purestream under this Agreement are limited to the Customer and no other party is entitled to any benefit hereunder.
27. Specifications Variations.
The specifications of Product or Services supplied by Purestream may vary from time to time and such variations shall not constitute a breach of this Agreement provided the Product or Services perform closely with the specification in the Agreement.
28. Quotation Duration.
In the event an offer to sell Product or provide Services or Product rental is made by Purestream then such offer and the terms thereof are good for thirty days from the date of offer only at which time such offer shall expire, and may be changed by Purestream in its sole discretion if renewed.
29. Payment Terms; Interest on Past Due and Collection Costs/Fees
Unless otherwise specified in the relevant Work Order, payment in full for the Product and any additional amounts due and owing from the Customer to Purestream shall be paid prior to shipping with subsequent invoices due to Purestream net 30 days from date of invoice. Except where specifically stated otherwise in the relevant Work Order all invoices are net thirty days. Overdue payments are subject to a 1.5% service charge per month or the maximum permitted by the relevant law whichever is lower. Customer agrees to pay all costs associated with the collection of a delinquent balance, including collection agency fees, reasonable attorney fees and court costs. Collection agency fees will be charged at the percentage paid to the agency, up to 33.33%. Credit given by Purestream may be withdrawn at any time and supply of Product or Services withheld until payment in advance is received.
30. Product Operation Responsibility.
Where the Customer (or other third parties with Customer authority) operate any Product then all responsibility for doing so, including without limitation all matters necessary to comply with safety and other laws and regulations, is the Customer’s responsibility and the Customer hereby agrees to indemnify Purestream in respect of any claims or losses howsoever arising out of such operation (whether in contract, tort or by operation of law) or relating to any breaches of such laws and regulations.
31. Order Cancellation / Variation / Delay by Customer.
After signed acceptance of any Work Order by the Customer, no cancellation, suspension or variation of the Agreement by the Customer shall be of any effect unless agreed in writing and signed by both Parties. Should the Customer fail to honor any of its obligations under the Agreement or by lack of readiness or otherwise, prevent or cause delay to delivery, installation, testing, commissioning or other element of Purestream’s fulfillment of the Agreement then the Customer shall pay and indemnify Purestream for all costs, expenses, losses, attorney’s and other fees arising out of or connected to such prevention or delay and (where applicable) and relating to any enforcement of the provisions of the Agreement by Purestream and collection of monies relating thereto.
32. Cleaning and Remediation.
Immediately upon termination of any Agreement for Product rental the Customer shall be solely responsible at Customer’s expense to the satisfaction of Purestream, (a) to clean all Product used relating to the Agreement including, without limitation, to eradicate NORM and other contaminants (regulated or otherwise), and (b) for the clean-up and remediation to lawful or otherwise required standards of the site or sites where Services were provided under the Agreement, and (c) to yield up and deliver possession to Purestream at a location nominated by Purestream of any Product used in relation to this Agreement such Product to be in good working order and free from damage (normal wear and tear excepted).
33. Ethical Behavior
(i) Purestream encourages its Suppliers and Customers together with their employees, officers, agents, representatives and subcontractors to at all times maintain the highest ethical standards. This includes avoiding any conflicts of interest in the performance of obligations under any contract with Purestream. All Customers and Suppliers of Purestream their employees, officers, agents and representatives shall at all times comply with all applicable laws, statutes, regulations and codes prohibiting bribery, corruption, kick-backs or similar unethical practices including, without limitation, the United States Foreign Corrupt Practices Act, the United Kingdom Bribery Act 2010, and Purestream's code of business conduct, a copy of which is available upon written request. All Customers and Suppliers to Purestream shall maintain accurate accounting procedures and internal controls necessary to record all expenditures in connection with any contract with Purestream and Purestream shall be permitted to audit such records as reasonably necessary to confirm compliance with this clause. Customers and Suppliers to Purestream shall indemnify and hold Purestream harmless for all fines, penalties, expenses or other losses sustained by Purestream as a result of any breach of this clause.
(ii) Where reasonably feasible Purestream's Suppliers and Customers shall collaborate with Purestream to recycle packaging and other disposables or re-usable items associated with any contracts with Purestream.