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<br />The fact that insurance (including, without limitation, self -insurance) is obtained by Contractor <br />shall not be deemed to release or diminish the liability of Contractor including, without <br />limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by <br />Railway shall not be limited by the amount of the required insurance coverage. <br /> <br />In the event of a claim or lawsuit involving Railway arising out of this agreement, Contractor <br />will make available any required policy covering such claim or lawsuit. <br /> <br />These insurance provisions are intended to be a separate and distinct obligation on the part of <br />the Contractor. Therefore, these provisions shall be enforceable and Contractor shall be <br />bound thereby regardless of whether or not indemnity provisions are determined to be <br />enforceable in the jurisdiction in which the work covered hereunder is performed. <br /> <br />For purposes of this section, Railway shall mean “Burlington Northern Santa Fe LLC”, “BNSF <br />Railway Company” and the subsidiaries, successors, assigns and affiliates of each. <br /> <br /> <br />4) SALES AND OTHER TAXES <br /> <br />In the event applicable sales taxes of a state or political subdivision of a state of the United <br />States are levied or assessed in connection with and directly related to any amounts invoiced <br />by Contractor to Railway (“Sales Taxes”), Railway shall be responsible for paying only the <br />Sales Taxes that Contractor separately states on the invoice or other billing documents <br />provided to Railway; provided, however, that (i) nothing herein shall preclude Railway from <br />claiming whatever Sales Tax exemptions are applicable to amounts Contractor bills Railway, <br />(ii) Contractor shall be responsible for all sales, use, excise, consumption, services and other <br />taxes which may accrue on all services, materials, equipment, supplies or fixtures that <br />Contractor and its subcontractors use or consume in the performance of this Agreement, (iii) <br />Contractor shall be responsible for Sales Taxes (together with any penalties, fines or interest <br />thereon) that Contractor fails to separately state on the invoice or other billing documents <br />provided to Railway or fails to collect at the time of payment by Railway of invoiced amounts <br />(except where Railway claims a Sales Tax exemption), and (iv) Contractor sha ll be responsible <br />for Sales Taxes (together with any penalties, fines or interest thereon) if Contractor fails to <br />issue separate invoices for each state in which Contractor delivers goods, provides services <br />or, if applicable, transfers intangible rights to Railway. <br /> <br />Upon request, Contractor shall provide Railway satisfactory evidence that all taxes (together <br />with any penalties, fines or interest thereon) that Contractor is responsible to pay under this <br />Agreement have been paid. If a written claim is made a gainst Contractor for Sales Taxes with <br />respect to which Railway may be liable for under this Agreement, Contractor shall promptly <br />notify Railway of such claim and provide Railway copies of all correspondence received from <br />the taxing authority. Railway shall have the right to contest, protest, or claim a refund, in <br />Railway’s own name, any Sales Taxes paid by Railway to Contractor or for which Railway <br />might otherwise be responsible for under this Agreement; provided, however, that if Railway is <br />not permitted by law to contest any such Sales Tax in its own name, Contractor shall, if <br />requested by Railway at Railway’s sole cost and expense, contest in Contractor’s own name <br />the validity, applicability or amount of such Sales Tax and allow Railway to control and co nduct <br />such contest.