1 These terms and conditions (“Terms and Conditions”) are between Land O'Lakes, Inc. and/or its affiliates or subsidiaries (collectively "LOL") and the supplier identified on the front of this PO ("Seller") and covers: (a) “Goods” which includes the purchase of software and tangible goods; (b) “Services” which includes the purchase/ordering of hosting services (including LOL’s access to and use of the Goods on a hosted basis), installation services, implementation services, maintenance services, professional services, and any other services that Seller provides hereunder; and (c) all intellectual property (“IP”) or other work product developed by Seller (or a subcontractor) for LOL as part of delivery of Goods or Services which are deemed a “work made for hire” for LOL as that term is defined under applicable copyright law (“Deliverables”). The Goods, Services and Deliverables are collectively referred to as “Products.”
  1. Acceptance of PO. The PO represents LOL’s offer to Seller to purchase the Products identified on the PO, which in combination with these Terms and Conditions constitutes a binding contract under the terms and conditions stated on the PO and herein upon any expression of acceptance by Seller, or commencement of performance, whichever occurs first. In the event that Seller and LOL have entered into a separate, signed (i) agreement that applies to the Products ordered under this PO, or (ii) master agreement (each an “Agreement”); in either case where such Agreement has additional or conflicting terms and conditions, such Agreement will supersede and take precedence over any conflicting terms and conditions in these Terms and Conditions, and the provisions of such Agreement are incorporated herein. Any terms and conditions proposed by Seller in acknowledging or accepting LOL’s offer that are different from or in addition to the terms set forth in this PO or an Agreement shall not be binding upon LOL and shall be void and of no effect. For purposes of this PO, online terms or agreements that LOL accepts to login or access Services, such as software as a service or platform Services, is not an agreement that has been “mutually executed” and will not replace, supplement or amend the terms in this PO.
  1. Risk of Loss; Delivery; Inspection. Risk of loss remains with Seller until LOL's receipt, inspection, and acceptance of any Products. Time shall be of the essence with respect to the delivery of any Products. LOL shall have the right to inspect all Products and to reject any Products that are, in LOL's judgment, defective or non-conforming. Seller shall reimburse LOL for all costs and expenses incurred by LOL in returning any rejected Products to Seller.
  1. Prices; Payment; Taxes. The prices set forth in this PO are complete; no additional charges of any type will be added without LOL's express written consent. Unless otherwise specified, payment shall be due net forty-five (45) days of LOL's receipt of Seller's invoice. LOL may dispute any invoice by providing oral or written notice or partial payment. LOL will make commercially reasonable efforts to notify Seller in writing of any disputed amount. However, neither failing to provide notice nor payment of an invoice is a waiver of any claim or right. The amounts to be paid by LOL to Seller do not include taxes. LOL is not liable for any taxes that Seller is legally obligated to pay, including net income or gross receipts taxes, franchise taxes, and property taxes. Except where LOL provides Seller a valid exemption certificate, LOL will pay Seller any sales, use or value added taxes it owes due to this PO and which the law requires Seller to collect from LOL.
  2. Representations and Warranties. Seller represents and warrants that Services will be performed professionally and be of high grade, nature and quality. Seller represents and warrants that all Products supplied to LOL shall: (a) be of good quality and workmanship and free from defects, latent or patent; (b) conform to all specifications, drawings, or descriptions furnished by or to LOL; (c) conform to Seller's samples, representations, or promises; (d) be merchantable and suitable for their intended purpose and for LOL's particular purpose; and (e) be free from any claims, liens, or encumbrances. Any Goods or Deliverables furnished by Seller to LOL that become subject to any recall shall be deemed defective, not merchantable, and not fit for LOL's particular use. If any Product provided under this PO is defective in materials or workmanship or not in conformity with the requirements herein, then LOL may reject it without correction, require its correction within a specified time, accept it with an adjustment in price, or return it to Seller for full refund. When LOL provides notice to Seller, Seller will promptly replace or correct, at their expense, any Product rejected or requiring correction. If, after LOL’s request, Seller fails to promptly replace or correct a defective Product within the delivery schedule, LOL may, at its sole option, (i) replace or correct such Product and charge the cost to Seller, (ii) without further notice terminate this PO for default, return the rejected Product to Seller at Seller’s expense and Seller will promptly refund any amounts paid by LOL for the returned Product, or (iii) require a reduction in price.
  1. License.  Seller hereby grants to LOL and its affiliates and subsidiaries (including their employees, contractors, consultants, outsourced workers, and interns engaged by LOL or any of its affiliated companies to perform services) (a) a worldwide, irrevocable, nonexclusive, perpetual, paid-up and royalty free license for any Goods that include software or other IP not subject to a separate license (including installed applications), and (b) a worldwide, nonexclusive, unlimited, paid up and royalty free right to access and use, during the term of this PO, Services (where applicable), in each case for LOL’s business purposes. The license allows LOL to use such software, IP and Services in connection with Goods. LOL may transfer this license if it transfers the Goods to an affiliate/subsidiary, a LOL third-party service provider, or a successor owner by sale or lease.  
  1. Intellectual Property.
    1. Each party will own and retain all rights to its pre-existing IP and any IP independently developed outside of the Goods and Services under this PO.
    2. LOL will own all Deliverables, including all IP rights, all media in any format, hardware, and other tangible materials created by Seller while delivering the Services. Any Seller work which a written or customized product or report related to, or to be used in, a Deliverable is regarded as IP. If Deliverables do not qualify as a work made for hire, Seller assigns to LOL all right, title, and interest in and to the Deliverables, including all IP rights. Seller waives all moral rights in Deliverables.
    3. If Seller uses any Seller or third-party IP in any Good or Service, Seller will continue to own Seller’s IP. Seller will grant LOL a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid up right and license, under all current and future IP, to use Seller’s and third-party IP consistent with LOL’s ownership interests under this Section 6.
  1. LOL Materials. Seller may obtain “LOL Materials” meaning tangible or intangible materials (including hardware, software, source code, documentation, met methodologies, know how, processes, techniques, ideas, concepts, technologies, and data) provided by or on behalf of LOL or any of its affiliates or subsidiaries required for Seller to perform the Services, including all data or information submitted to the software or hosting Services by LOL and all derivatives thereof produced through use of the software or hosting Services. LOL Materials include any modifications to, or derivative works of, the foregoing materials, the trademarks and any data entered into any Seller database as part of the Services. LOL Materials do not include LOL products obtained by Seller outside of and unrelated to this PO. LOL grants Seller a nonexclusive, non-sublicensable (except to approved subcontractors), revocable license to copy, use and distribute any LOL Materials solely to provide the Services hereunder. LOL retains all other interest in LOL Materials and related IP. Seller will take reasonable precautions to protect and ensure against loss or damage, theft, or disappearance of LOL Materials. Seller will promptly return any LOL Materials upon expiration or termination. Regarding Seller’s use of LOL Materials: (a) Seller will not modify, reverse engineer, decompile, or disassemble LOL  Materials except as allowed by LOL; (b) Seller will leave in place, and not alter or obscure proprietary notices and licenses contained in LOL Materials; (c) LOL is not obligated to provide technical support, maintenance or updates for LOL Materials; (d) All LOL Materials are provided “as-is” without warranty; and (e) Seller assumes the risk of loss, damage, unauthorized access or use, or theft or disappearance of LOL Materials in Seller’s (or subcontractor’s) care, custody or control.
  1. Scope of Services. Seller shall furnish all labor, materials, tools, equipment, and other items necessary for the performance of the Services. Seller shall coordinate the provision of its Services with any other contractors and subcontractors. LOL shall not be liable for any delays suffered by Seller due to the acts of other contractors or subcontractors. Seller will not subcontract with any third party to furnish any Products without LOL’s prior written consent.
  1. Compliance with Laws and Regulations. Seller and its employees, contractors, representatives, and agents shall comply with all applicable site rules at LOL's locations.  In performing its obligations for LOL, Seller shall comply with all applicable local, state, and federal laws, ordinances, regulations, rules, and orders, as well as LOL's Supplier Code of Conduct, which may be accessed at LOL's corporate website (www.landolakesinc.com).  LOL is an equal opportunity employer and federal contractor or subcontractor.  Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference.  These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin.  These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.  The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
  1. Indemnification. Seller shall indemnify, defend, and hold LOL and its employees, directors, officers, shareholders, affiliates, subsidiaries, agents, premise owners, and customers harmless from and against any and all damages, claims, demands, loss, costs, actions, liabilities and expenses arising out of, or resulting in any way from any (a) actions resulting in personal injury, including death, property damage, economic loss, or other damages or losses caused directly or indirectly by Seller; (b) breach of the warranties and obligations of Seller hereunder; (c) actual or alleged infringements of any third party IP or other proprietary rights, which arise from the Products provided under this PO; (d) act or omission of or failure to comply with applicable laws, rules or regulations by Seller or its agents, employees or subcontractors; (e) breach of confidentiality obligations; or (f) claims of Seller’s employees, affiliated companies or subcontractors regardless of the basis, including but not limited to, payment of settlements, judgements, and reasonable attorneys’ fees. Seller's indemnity obligations shall include: (i) the obligation to pay all attorney's fees, expert witness fees, costs, and disbursements incurred by LOL in defending any such claims; (ii) the obligation to reimburse LOL for any amounts that LOL, in its sole discretion, agrees to pay to settle any such claims; and (iii) the obligation to reimburse LOL for any amounts that LOL may have to pay to satisfy any judgments or awards entered against LOL based upon any such claims.
  1. Confidentiality. If the parties have entered into a non-disclosure agreement (“NDA”) related to the subject matter of this PO, the terms of such NDA will apply to and be incorporated into this PO and all terms and conditions of this PO and LOL Material will be deemed confidential information in such NDA.  If the parties have not entered into a NDA, then Seller agrees that it will hold in strictest confidence and will not use or disclose to any third party, any LOL Confidential Information. The term "LOL Confidential Information" means all non-public information that LOL or its affiliates or subsidiaries designates, either in writing or orally, as confidential, or which, under the circumstances of disclosure ought to be treated as confidential, including but not limited to, LOL Material. LOL Confidential Information will not include information known to Seller before LOL’s disclosure to Seller, or information that is or becomes publicly available through no fault of Seller.
  1. Termination.  LOL may terminate this PO with or without cause. Termination is effective upon written notice. If LOL terminates for convenience, its only obligation is to pay for (a) Goods and Deliverables it accepts before the effective date of termination; or (b) Services performed, where LOL retains the benefit after the effective date of termination.
  1. Miscellaneous. Any transaction or contract between Seller and LOL shall be governed by and construed in accordance with Minnesota law. Any legal action or proceeding between the parties shall be instituted exclusively in a state or federal court in Minnesota. Seller consents to personal jurisdiction of the courts of Minnesota and waives any claim that venue in such courts is inconvenient or improper. LOL shall be entitled to pursue all available remedies in the event of any breach of contract or warranty by Seller, including recovery of indirect, incidental, special, punitive and consequential damages. LOL shall be entitled to recover all of its attorney's fees, expert witness fees, costs, and disbursements relating to or arising from any breach of contract or warranty by Seller. No right or obligation under this PO (including the rights to receive monies due) will be assigned by Seller without the prior written consent of LOL. Any assignment without such consent will be void. LOL may assign its rights under this PO. If a court of competent jurisdiction determines that any PO provision is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect. Those provisions of this PO that, by their nature, are intended to survive the termination or expiration of this PO, will remain in full force and effect following the termination or expiration of this PO, including without limitation indemnification and confidentiality.  LOL’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy. Seller will not issue press releases or other publicity related to Seller’s relationship with LOL or this PO without prior written approval from LOL.