Procurement terms & conditions

PO and BPO terms and conditions

These PO and BPO Terms and Conditions shall apply to all POs and certain Procurement-approved BPOs for Nationwide’s purchase from Supplier of certain products and services, subject to the terms herein. For purposes of these PO and BPO Terms and Conditions, “Nationwide” and “Supplier” shall have the meaning ascribed in the applicable PO or BPO, and the “Agreement” means collectively (a) these PO and BPO Terms and Conditions, (b) the applicable PO or BPO, and (c) if applicable to such PO or BPO, the Work Order on Nationwide’s prescribed form, which contains the parties’ additional business requirements and is related to the applicable PO or BPO in Nationwide’s Source-to-Pay system (the “Work Order”). For avoidance of any doubt, Supplier’s online, embedded, click-to-accept, click-wrap, browser-wrap, or other similar terms (including website terms of use and website privacy policies) are expressly excluded from the Agreement, even if such terms are contained in a Supplier quotation, invoice, or other documentation, or later acknowledged or accepted by a Nationwide user.  Except as otherwise provided herein, the Agreement shall be governed by any applicable provisions of the Uniform Commercial Code, to the extent applicable to the procurement.

1. Offer, Acceptance, and Delivery: The Agreement reflects Nationwide’s offer to purchase the products or services listed in the applicable PO or BPO, at the purchase price stated therein. The first to occur of (a) Supplier’s submission of an invoice into Nationwide’s Source-to-Pay system that is applicable to the PO or BPO, or (b) performance by Supplier under the applicable PO or BPO, shall constitute Supplier's acceptance of the Agreement. Supplier shall deliver the applicable products or services to Nationwide by the date(s) set forth in the Agreement.

2. Payment  and Taxes:

   2.1   Invoices: Supplier shall, at its own expense, submit invoices in accordance with Nationwide’s Supplier Invoicing Policy (each, a “Proper Invoice”), which shall be made available to Supplier upon request. The applicable PO or BPO number must appear on all invoices and notices.  Nationwide shall pay each undisputed itemized invoice within 60 days of Nationwide’s receipt of a Proper Invoice.

   2.2   Expense Reimbursement : Nationwide shall only reimburse Supplier for those expenses specified in the applicable PO or BPO. Furthermore, any reimbursable expenses are subject to Nationwide’s prior written approval and the terms of Nationwide’s Travel and Expense Guidelines, which shall be made available to Supplier upon request. In no event shall Nationwide be responsible for travel time to and from Nationwide’s facilities.

   2.3   Invoicing Delay: Supplier shall submit invoices monthly, in arrears, for fees to be paid and for expense to be reimbursed, within 15 days of the last calendar day of the corresponding month. If there is a delay in the delivery of any type of invoice to Nationwide, the amount of such invoice due and payable by Nationwide shall be reduced as follows: 60-89 days overdue - 10% reduction; 90-119 days overdue - 20% reduction; 120 or more days overdue - 100% reduction.

   2.4   Taxes: Supplier shall separately state all taxes that Supplier is legally required to collect from Nationwide on its invoices to Nationwide.  Should Supplier fail to separately state or collect such taxes, Supplier shall be liable for (a) the taxes not separately stated or collected to the extent that Nationwide previously remitted the corresponding use tax; and (b) any interest and penalties resulting from Supplier’s failure to separately state or collect taxes that it was legally required to collect from Nationwide.

3. Confidentiality

   3.1   Confidential Information Definition: “Confidential Information” means information that may be disclosed, whether orally or in writing, from or on behalf of a party (in such capacity,  “Disclosing Party”) to the other party (in such capacity, “Receiving Party”), or that may be otherwise received or accessed by Receiving Party in connection with this Agreement, whether transmitted prior to or after the effective date. “Confidential Information” excludes information (a) previously known to Receiving Party without an obligation of confidence; (b) independently developed by or for Receiving Party or Receiving Party’s employees, consultants, or agents without reference to, or use of, the Confidential Information; (c) lawfully acquired by Receiving Party from a third party which is not, to Receiving Party’s knowledge, under an obligation of confidence with respect to such information; or (d) which is or becomes publicly available through no fault of Receiving Party or by no breach of the Agreement. The exclusions in (a)-(d) do not apply to any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.

   3.2   Confidentiality Obligations: Receiving Party shall hold Confidential Information of Disclosing Party in strict confidence and take all reasonable steps to assure that Disclosing Party’s Confidential Information, which has or will come into its possession or knowledge in connection with the Agreement, will not be disclosed to others, except as permitted in this section. Disclosing Party owns or retains all rights in its Confidential Information. Receiving Party shall not use, disclose, or distribute any Confidential Information, except as necessary to perform its obligations under the Agreement. Receiving Party shall limit such disclosure and distribution to those of its employees, officers, agents, and contractors who have a need to know Disclosing Party’s Confidential Information (and only to the extent required) for purposes of Receiving Party’s rights or obligations under the Agreement. Receiving Party shall protect and maintain Confidential Information with reasonable care, not less than the degree of care it uses to protect and maintain its own Confidential Information.

   3.3   Retention, Return, or Destruction: Unless otherwise required by laws, following the completion or termination of the Agreement and upon either party’s written request, the other party promptly shall (a) return such requesting party’s Confidential Information that is in its possession or control; or (b) purge, delete, or destroy, to the extent reasonably practical, any of such requesting party’s Confidential Information that cannot feasibly be returned. Any remaining Confidential Information that cannot be returned, purged, deleted, or destroyed remains subject to the confidentiality obligations in this Agreement.

4. Representations and Warranties

   4.1   General: Each party represents and warrants to the other party that (a) it is duly organized, validly existing, and in good standing under the laws; (b) it has the power and authority to execute and transact business and perform its obligations hereunder; (c) its entry into the Agreement does not violate or constitute a breach of any agreement to which it is a party or otherwise bound; and (d) it complies with laws.

   4.2   Title and Non-Infringement: Supplier represents and warrants to Nationwide that (a) it has good and marketable title to (free and clear of all liens and encumbrances), and the right to provide, all applicable products and services; and (b) there is no claim against Supplier with respect to any such products and services alleging infringement or misappropriation of any intellectual property rights.

   4.3   Products: To the extent the applicable PO or BPO relates to products, Supplier represents and warrants to Nationwide that the products are free from damage and defects in material, design, and workmanship and perform in accordance with Supplier’s documentation.  In the event that Nationwide notifies Supplier of any damage, defect, or nonconformity within 180 days of the delivery date, at Nationwide’s option, Supplier shall (a) refund the full purchase price to Nationwide, including any associated return fees; or (b) repair or replace the product at Supplier’s expense. In the event that Nationwide opts for (b) above and Supplier does not repair or replace the product within 10 days of notification from Nationwide, at Nationwide’s option, Supplier shall promptly provide Nationwide with a full refund of all fees paid.

   4.4   On -Prem Software: Notwithstanding the terms in the Products section above, to the extent the applicable PO or BPO relates to on-prem software, Supplier represents and warrants to Nationwide that, during the 180-day period following the date on which the software is accepted by Nationwide, or if the software is not subject to acceptance testing, during the 180-day period following the date on which the software is delivered to Nationwide (the “Warranty Period”), the software will be free from defects in material, design and workmanship, and will comply with applicable documentation. If Nationwide, within the Warranty Period, notifies Supplier of any breach of the foregoing warranty, Supplier shall, at its option, repair or replace the defective software at its sole expense. The Warranty Period shall extend by a period equal to any periods during which the software fails to conform to the foregoing warranty. If Supplier is unable to repair or replace the defective software within 30 days, or such longer period as may be mutually agreed upon by the parties, Nationwide may terminate the applicable Order, or portion thereof, and Supplier shall thereupon refund to Nationwide any and all fees previously paid by Nationwide to Supplier for the same.

   4.5   Services: To the extent the applicable PO or BPO relates to services, Supplier represents and warrants to Nationwide that (a) Supplier personnel it assigns to perform the services will be competent to perform the services; and (b) the services performed shall be of professional quality, consistent with generally accepted industry standards for services of a similar nature, and comply with applicable laws and any applicable terms in a Work Order (if any). In the event that Nationwide notifies Supplier of any breach of the foregoing warranty,  Supplier shall, within a reasonable time, but no later than 30 days, reperform such services to conform with the foregoing warranty. If Supplier is unable to properly reperform such services within a reasonable time, or if Nationwide reasonably determines that such reperformance is impractical, upon Nationwide’s request, Supplier shall promptly refund to Nationwide the amounts paid by Nationwide for such services.

   4.6   Deliverables: To the extent the applicable PO or BPO relates to services where Supplier is also providing Nationwide with deliverables (which may include Results), Supplier hereby represents and warrants to Nationwide that the deliverables will conform to the terms of the applicable PO or BPO and Work Order (if any), for 180 days following the deliverable acceptance testing period, or if the deliverables are not subject to acceptance testing, during the 180-day period following the date on which the deliverables are delivered to Nationwide. If Nationwide notifies Supplier of any breach of the foregoing warranty, Supplier shall use commercially reasonable efforts to correct the deliverables. If Supplier is unable to correct the deliverables within 30 days of notification, or such other period as agreed by the parties, or if Nationwide reasonably determines that such correction is impractical, Supplier shall, promptly refund to Nationwide the amounts paid by Nationwide for such deliverable and for any other services provided by Supplier which are no longer reasonably useful to Nationwide as a result of such breach.

   4.7   Information Security: Supplier  represents and warrants to Nationwide that, to the best of its knowledge, the information submitted in the questionnaires or requests relating to its information security program are truthful, accurate, current, and complete. Supplier represents and warrants to Nationwide that its information security program complies with its information security documentation. Where Supplier accesses or uses the Nationwide network, Supplier represents and warrants that Supplier complies with one or more of the following standards: (a) NIST; (b) ISO/IEC 27000 family of standards; or (c) other applicable industry standards for information security.

   4.8   No Malicious Code: Supplier  represents and warrants to Nationwide that the services, materials, products, software, documentation, deliverables, products, and any and all other tangible and intangible property (to the extent provided under the Agreement) do not contain any disabling devices, malware, routines, scripts, code, or other software that could cause or result in (a) unauthorized monitoring of or access to equipment, systems, or data; (b) unauthorized disclosure of data; (c) unauthorized deletion of data; or (d) disabling of, or otherwise harm to, any such services, materials, products, software, documentation, deliverables, products, and any and all other tangible and intangible property (to the extent provided under the Agreement), or Nationwide’s equipment, systems, data, or other owned or licensed software. 

   4.9    Disclaimer of Additional Warranties: EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES EXPRESSLY DISCLAIM, WAIVE, RELEASE, AND RENOUNCE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

5. Indemnities: Supplier shall defend, indemnify, and hold harmless Nationwide, its affiliates, and their respective officers, directors, employees, agents, contractors, successors, and assigns, from and against any and all damages, losses, fines, penalties, costs, expenses, liabilities, and other fees (including reasonable attorneys’ fees), arising from or relating to any actual, alleged, or threatened, claim, demand, investigation, or causes of action by third parties based on Supplier’s (a) negligent, grossly negligent, or intentional acts or omissions; (b) breach of this Agreement; (c) violation of laws; and (d) provision of services, materials, products, software, documentation, deliverables, products, and any and all other tangible and intangible property (to the extent provided under the Agreement) that infringe upon or misappropriate the intellectual property rights of such third party. 

6. Limitation of Liability: EXCEPT FOR A PARTY’S OBLIGATIONS OR LIABILITIES ARISING FROM OR RELATING TO THE INDEMNITIES, CONFIDENTIALITY, AND REPRESENTATIONS AND WARRANTIES SECTIONS AND A PARTY’S WILLFUL, CRIMINAL OR WANTON OR FRAUDULENT MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOST SAVINGS, OR LOSS OF GOODWILL) ARISING UNDER OR IN CONNECTION WITH A BREACH OR ALLEGED  BREACH OF THIS AGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY DAMAGES AND COSTS PAYABLE TO THIRD PARTIES SHALL BE CONSTRUED AS DIRECT DAMAGES.

7. Insurance: At Supplier’s own cost and expense, Supplier shall maintain from a third party that is rated “A” or better in Best’s Insurance Guide, or that is otherwise acceptable to Nationwide, comprehensive public liability and property damage insurance in amounts customarily maintained in Supplier's industry, insuring against liability for, among other things, bodily injury and property damage . Upon request, Supplier shall provide certificates of insurance evidencing the above coverage to Nationwide.

8. Audit: Upon at least 30 days’ prior written notice from Nationwide, Supplier shall provide Nationwide and its authorized representatives, during regular business hours, with access and any reasonable assistance they require with respect to auditing any applicable services or Supplier’s compliance with the Agreement. 

9. Supplier Personnel

   9.1   Subcontractors: Supplier may not subcontract any applicable services, in whole or in part, without Nationwide’s prior written approval of the subcontractor, which Nationwide may withhold in its sole discretion. Supplier shall include in its subcontractor agreements provisions substantially similar to Supplier’s obligations in the Agreement, so that all subcontractors shall be bound to the obligations of Supplier hereunder, including obligations regarding confidentiality, Supplier personnel, audits, and intellectual property rights. Notwithstanding the foregoing, Supplier shall remain responsible and liable for any work performed by its subcontractor.

   9.2   Criminal Background Checks: Unless prohibited by laws, Supplier shall perform criminal background checks on any Supplier personnel having access to Nationwide’s premises or Nationwide Confidential Information. Supplier shall not assign to Nationwide any Supplier personnel, or subcontractor personnel, whose background check indicates a felony or a material history of crimes against property or crimes of violence. 

10. Termination:

    10.1   Termination for Convenience: Nationwide may terminate this Agreement, at any time and without cause, (a) prior to delivery of the products or performance of the services; or (b) thereafter, by providing at least 30 days’ prior written notice.  

    10.2   Termination for Breach: In the event that either party materially breaches the Agreement, the non-breaching party may terminate the Agreement by providing written notice to the breaching party, provided that the breaching party does not cure such breach within 30 days following its receipt of such notice.

    10.3   Upon Termination: Any fees earned by Supplier and reimbursable expenses incurred by Supplier, up to the effective date of termination of the Agreement (or such other date as the parties agree), shall be payable by Nationwide to Supplier as specified in the Payment and Taxes section. The unused portion of any pre-paid fees and expenses previously paid by Nationwide to Supplier shall be refunded by Supplier to Nationwide. There shall be no termination or wind-down fees payable by Nationwide for termination of the Agreement.  

11. Miscellaneous:

    11.1   Service Locations : Supplier shall (a) perform any services in the United States; (b) only use individuals located in the United States to provide any services; (c) store all Nationwide Confidential Information in the United States; and (d) not transmit Nationwide Confidential Information to, or allow access to any Nationwide Confidential Information by, entities and individuals located outside of the United States.

    11.2 On -Prem Software License Grant: To the extent the applicable PO or BPO relates to on-prem software, Supplier hereby grants to Nationwide and its affiliates, a worldwide, perpetual, irrevocable, nonexclusive, fully-paid, transferrable (as permitted by the Assignment section) license to access, use, and have the benefit of the software, including associated documentation. 

    11.3 Use of Results: To the extent the applicable PO or BPO relates to services where Supplier is providing Nationwide with results, data, outputs, excel spreadsheets, templates or any reports, generated by, or in connection with, the applicable services (collectively, the “Results”), Nationwide shall retain ownership of the Results produced and delivered by Supplier as part of the applicable services. To the extent that such Results incorporate Supplier’s pre-existing intellectual property, Supplier (a) retains title to its and its licensor’s pre-existing intellectual property; and (b) provides Nationwide (and its affiliates) with a fully paid up, irrevocable, perpetual, royalty free license to use as necessary to fully exploit the Results.

    11.4 Use of Materials and Recordings: To the extent Supplier provides materials or presentations in connection with the applicable PO or BPO that are not Results, Nationwide shall have the right to (a) copy and use any such materials, and (b) record and use any such presentations, for its internal business purposes.  Each party retains all right, title, and interest to its pre-existing intellectual property rights.

    11.5 Independent Contractors: The parties are independent contractors; they are not agents, employer and employee, co-venturers in a joint venture, or partners in a partnership. Neither party shall have any authority to act for, or to bind, the other party in any respect, nor shall either party hold itself out as having such authority.

    11.6 Assignment and Binding Effect: Neither party shall assign or transfer the Agreement, nor delegate any of its rights or obligations hereunder, without the prior written consent of the other party. Any assignment, transfer, or delegation of rights or obligations in contravention of this section is null and void. The Agreement is binding upon, and inures to the benefit of, either party’s respective permitted successors and assigns.

    11.7 Non-Use of Name: Neither party shall, without the prior written consent of the other party, (a) use (whether in advertising, publicity, marketing materials, press releases, display on websites, social media, or otherwise) the name of the other party or any of its affiliates, partners, or employees, nor any trade name, trademark, trade device, service mark, symbol, or any abbreviation, contraction, or simulation thereof that is owned by the other party or its affiliates; or (b) represent, directly or indirectly, that any product or any service provided by such party has been approved or endorsed by the other party.

    11.8 Waiver: A  waiver is not effective, and a breach is not excused, unless a written waiver or consent is signed by the party against whom it is asserted. Any such written waiver or consent does not constitute a waiver or consent of any other different or subsequent breach of the Agreement.

    11.9 Severability: In the event that any provisions of the Agreement are held invalid or unenforceable by a court of competent jurisdiction or regulatory agency, such provisions will be ineffective only to the extent of such invalidity or unenforceability, and the remainder of the provisions will remain in effect. 

    11.10 Governing  Law and Venue: This Agreement shall be governed by the laws of the State of Ohio, without giving effect to its conflict of laws provisions. The federal and state courts of Franklin County, Ohio have exclusive jurisdiction for any disputes arising under, or in connection with, the Agreement. The parties submit to the exclusive jurisdiction of the federal and state courts of the State of Ohio. The parties agree that the United Nations Convention for the International Sale of Goods will not apply to this Agreement in any respect, including its rules on the formation of contract.

    11.11 Entire Agreement: Except as otherwise provided in the Controlling Documents section below, the Agreement sets forth the entire understanding between the parties with respect to the subject matter hereof. The Agreement  supersedes all prior and contemporaneous representations, discussions, negotiations, letters, proposals, agreements, and understandings between the parties with respect to the subject matter hereof, whether written or oral.

    11.12 Amendment: The Agreement may be amended, modified, or supplemented only in a writing executed by an authorized representative of each of Nationwide and Supplier. Supplier’s online, embedded, click-to-accept, click-wrap, browser-wrap, or other similar terms (including website terms of use and website privacy policies) are not a written amendment executed by Nationwide, even if such terms are acknowledged or accepted by a user. Such terms are void.

    11.13 Survival: The following sections survive any termination or expiration of the Agreement: (a) Confidentiality; (b) Audit; (c) Representations and Warranties; (d) Indemnities; (e) Limitation of Liability; (f) Use of Results; (g) Use of Materials and Recordings; and (h) any other terms that by their nature should survive termination or expiration of the Agreement.

    11.14 Controlling Document: In the event of a conflict between these PO and BPO Terms and Conditions and the applicable PO or BPO and related Work Order (if any),  these PO and BPO Terms and Conditions control. Notwithstanding the foregoing, in the event that Nationwide and Supplier have already entered into a Master Agreement that is applicable to the types of products and services being procured by Nationwide from Supplier under the applicable PO or BPO and related Work Order (if any), the parties agree that all terms and conditions contained in such Master Agreement shall supersede these PO and BPO Terms and Conditions and shall apply to the applicable PO or BPO and related Work Order (if any).

    11.15 Notices : Except as otherwise specified herein, any notices or communications required to be given pursuant to the Agreement must be (a) personally delivered; (b) sent by certified mail, return receipt requested, postage prepaid; or (c) sent by a nationally recognized overnight delivery service, in each case to the following addresses (or to such other addresses as a party may designate by written notice to the other party):

To Nationwide: Nationwide Mutual Insurance Company

Attn: Office of the Chief Legal Officer - Contract Services Group
One Nationwide Plaza
1-35-408
Columbus, OH 43215

With a copy to (which shall not constitute notice hereunder): CSG@nationwide.com

To Supplier: Supplier’s  corporate address as shown on Supplier’s W-9 input into Nationwide’s Source-to-Pay system during Supplier’s registration (or to such other address as Supplier may designate by written notice to Nationwide)

All notices will be deemed effective upon the date of actual receipt. For purposes of clarity, Supplier shall submit all invoices in accordance with the Invoices section set forth above and not the e-mail address set forth in this section.