The following additional terms and conditions apply to the Onsite Services (collectively, the “Services”) by ZTR Control Systems, LLC (“ZTR”) pursuant to a Services and Supply Agreement between ZTR and purchaser (“Purchaser”) and for purposes hereof, the Services and Supply Agreement, together with these terms and conditions, any other terms and conditions referred to therein (including, but not limited to, the ZTR Control Systems, LLC Terms and Conditions (General)), and any resulting purchase orders accepted by ZTR, the “Agreement”. In the event of any conflict between any provision of these terms and conditions and the ZTR Control Systems, LLC Terms and Conditions (General), these terms and conditions will control.
PERFORMANCE OF SERVICES
Provision of Services. ZTR will provide consistent and effective supervision of its personnel at Purchaser sites while delivering services provided under this Agreement which shall include but not be limited to regular interaction and communication with employees either in person or through other effective means.
Personnel Selection. ZTR employees shall be selected and assigned by ZTR in accordance with its understanding of the project requirements described in the Agreement. After assignment at Purchaser site, ZTR employees shall perform services under the supervision and technical direction as outlined in the Agreement. At Purchaser’s reasonable and lawful request, ZTR will remove any personnel from Purchaser’s premises and not reassign such person to work on Purchaser’s premises.
Safety and Compliance. ZTR shall follow all applicable safety laws, health laws and requirements pertaining to its work and the conduct thereof, including but not limited to, compliance with all applicable laws, ordinances, rules, regulations, and orders issued by a public authority, whether federal, state or local, including OSHA. Purchaser shall provide ZTR with written copies of its applicable safety rules, training and procedures required for ZTR employees to obtain the necessary authorization perform Services at its locations.
Site Access. ZTR will have access to Purchaser locations during normal working hours or conditions otherwise agreed to and signed off with the agreed upon schedule. ZTR also assumes Purchaser locomotives or railcars will be in a location that will allow for the technician to perform described activities easily, safely and without obstruction.
Missed Unit. Assuming ZTR is onsite, ready and able to complete described activities per the agreed upon schedule, any delays in access to sites, locomotives or railcar, hardware/consumables resulting in missed installations, not caused by ZTR, will result the charges continuing at the agreed upon rate. ZTR will make every effort to complete described efforts for missed units while on site assuming Purchaser is able to provide access and available time remains. If not, due to circumstances beyond ZTR’s control, missed locomotives or railcars will be documented and per person week charges continuing as agreed. Missed locomotives or railcars may require a go-back visit with additional charges applied.
Materials. Purchaser will provide materials, equipment and consumables and staff as outlined in the agreed upon scope.
PROJECT DELAY AND CANCELLATION
A cancellation of the project prior to the start date with notification less 14 calendar days from start date will result in cancellation fees to reasonably cover expenses, commitments, administration and wind down costs. A temporary delay of the project, not caused by ZTR, after the start date will result in per unit charges, documented as delays, continuing until which point the project resumes. Any delays in the Purchaser providing access to sites, locomotives or railcars, hardware or other reasons not caused by ZTR, will be escalated to Purchaser in an effort to resolve the situation and mitigate any potential project impact. All delays will be documented by ZTR and provided to Purchaser.
LOSS OR DAMAGE
Risk of Loss. Purchaser will be responsible for ownership and inventory management of its hardware required for installation including handling, shipping, confirmation of receipt and ownership post installation for any hardware remaining onsite. ZTR is only responsible for care, custody and control of materials and products that have been delivered to a Purchaser site and have been clearly documented and agreed upon as being under ZTR’s physical control with respect to the Services specified in the Agreement.
Segregation of Inventory. While the materials and products are in ZTR possession or control, ZTR shall (i) keep the materials separate and capable of identification as the property of Purchaser. (ii) keep the materials in a suitable and safe place for storage.
Independent Services. ZTR reserves the right to use subcontractors for installation or commissioning services contingent on Purchaser approval. Changes in subcontractor at the request of Purchaser may result in price and schedule adjustments. ZTR and any ZTR subcontractors shall be independent contractors to Purchaser with respect to the Services, irrespective of whether such Subcontractors are approved by Purchaser and neither ZTR nor its Subcontractors, nor the employees or agents of either, shall be deemed to be the employees, representatives or agents of Purchaser in connection with any matter relating to this Agreement. No provision of this Agreement shall be construed or represented as creating a partnership, trust, joint venture, fiduciary or any similar relationship between the Parties. ZTR shall be solely responsible for the employment, control and conduct of all persons in its employ, and ZTR shall make all withholdings and payments of all payroll taxes and similar obligations, including income tax, social security tax, unemployment tax and worker’s compensation taxes, for each of its employees and salespersons. Purchaser agrees that it shall not employ of offer to employ any employee of subcontractor of ZTR for the duration of this Agreement and for a period of one (1) year thereafter, without ZTR’s written consent.