1. In this Agreement, the term "Customer" refers jointly to the Driver and the Transportation Company, who shall be jointly and severally liable for the obligations of the Customer hereunder.
2. Customer's use of Facility shall be non-exclusive, only for the purpose stated in this Agreement, and subject and subordinate to the prior and continuing right and obligation of Owner to use and maintain its entire property. In no event shall the Facility be used by Customer for the transportation or storage of hazardous materials, as defined by any agreements between Owner and Customer, or applicable governmental laws, rules, regulations and orders, unless expressly agreed to in writing by Owner.
3. Due to the potentially dangerous nature of the Owner's railroad operations, Customer shall comply with all applicable governmental laws, rules, regulations and orders in its use of the Facility, including governmental laws, regulations, standards and permit requirements relating to environmental pollution or contamination or to occupational health and safety, and shall conduct its operations In a manner that is free from safety and health hazards. Customer shall ensure that its employees or contractors are competent, adequately trained in all safety and health aspects of Customer's operations, suitably dressed and equipped, and not under the influence of any alcoholic beverage, illegal drug, or any substance that may impair the safe performance of their work. Customer shall strictly observe the rules, regulations or directions of Owner or its authorized representatives. Customer shall be solely responsible for the safety of its use of the Facility, both as concerns Customer's property and employees or contractors, the property of Customer, and the property and employees of Owner and other users of the Facility. Owner shall have no responsibility for Customer's operations, employees or contractors. Customer's employees and contractors shall in no event be deemed to be employees of Owner. Customer shall promptly notify Owner of any OSHA reportable injuries to any person during Customer's use of the Facility.
4. Customer shall not cause any interference with the constant, continuous and uninterrupted use of the tracks, property and facilities of Owner, its lessees, licensees or others. Nothing shall be done or permitted by Customer that would impair the safety thereof. When not in use Customer's vehicles and equipment shall be kept at least 10 feet from the centerline of Owner's nearest track and shall be removed from the Facility when the loading or unloading is completed, and there shall be no vehicular crossings of Owner's tracks except at existing open public crossings.
5. Customer shall be responsible for the repair or replacement of any damaged or destroyed property of Owner or other users of the Facility, including disturbance of the alignment and surface, interlocking or other facilities which Owner maintains, when such damage or destruction arises in any manner out of the Customer's use of the Facility.
6. Customer shall not release, dispose of or place any materials (including hazardous materials) or debris within the Facility, and shall be responsible for removing and properly disposing of any such materials or debris. Notwithstanding anything in this Agreement to the contrary, Customer shall have no liability or responsibility for the condition of the Facility or the underlying property except as may be caused by Customer.
7. The Owner shall defend, indemnify and hold harmless the Customer and the Customer’s officers, directors, employees and agents (in this Section 7, each, a “Customer Indemnitee”), from and against any claims, causes of action, losses, damages, liabilities, obligations, penalties, fines, suits, costs and expenses claimed by the Customer Indemnitee (collectively in this Section 7, such claims being the “Customer Claims”) directly arising out of or resulting from: (a) any breach of this Agreement by the Owner; or (b) any negligent act or willful misconduct of the Owner or those for whom it is responsible at law. Notwithstanding the foregoing, if the Customer receives any insurance proceeds as a result of the matter giving rise to any Customer Claim, the Owner’s indemnification obligation with respect to such Customer Claim shall be reduced by the amount of any such insurance proceeds actually received by the Customer Indemnitee in respect of the Customer Claim, less any deductible paid by the Customer in order to obtain such insurance proceeds.
8. The Customer shall defend, indemnify and hold harmless the Owner and the Owner’s officers, directors, employees and agents (in this Section 8, each, an “Owner Indemnitee”), from and against any claims, causes of action, losses, damages, liabilities, obligations, penalties, fines, suits, costs and expenses claimed any person other than an Owner Indemnitee (collectively in this Section 8, such third party claims being “Claims”) directly arising out of or resulting from: (a) any breach of this Agreement by the Customer; or (b) any negligent act or willful misconduct of the Customer or those for whom it is responsible at law. Without limiting the generality of the foregoing, the Customer shall defend, indemnify and hold harmless each Owner Indemnitee from and against any and all Claims for personal injury or death and loss or damage of property directly arising out of the Customer’s negligent acts or willful misconduct at the Facility. Notwithstanding the foregoing: (i) the Customer shall not indemnify, defend or hold harmless any Owner Indemnitee from any Claims to the extent such Claims directly result from the negligent acts or willful misconduct of an Owner Indemnitee or an Owner Indemnitee’s breach of any provision of this agreement; and (ii) the Customer shall not indemnify, defend or hold harmless any Owner Indemnitee for any indirect, special exemplary, economic, punitive, incidental or consequential damages under any theory of law, and regardless of any sole or concurrent negligence, willful misconduct or fault by the Customer or any of its employees, agents, contractors, licensees or invitees.
9. Customer shall at all times during its entry, use and occupancy of the Facility keep and maintain in full force and effect (a) commercial general liability insurance coverage of $2,000,000 on ISO form CG 00 01, or equivalent, for (i) bodily injury and death, property damage and personal injury; and (ii) contractual liability; (b) business automobile and/or trucker's liability insurance coverage, including coverage for owned, hired and non-owned automobile liability, on ISO form CA 00 01, or equivalent, with an inclusive limit of not less than $2,000,000 for any one occurrence in respect of the use or operation of motor vehicles owned, leased or controlled by Customer; and (c) worker's compensation insurance coverage meeting the statutory requirements of the State of Missouri covering all of Customer's employees, including employee's liability limits of not less than $500,000. This insurance shall name Owner as an additional insured and include a waiver of subrogation by insurer as to Owner. Evidence of such insurance coverage on an ACORD form has been or will be provided to Owner prior to or upon entry to the Facility.