These PO and BPO Terms and Conditions shall apply to all POs and certain Procurement-approved BPOs for Nationwide’s purchase of products or services from Supplier (collectively, the “Agreement”). For purposes of these PO and BPO Terms and Conditions, Nationwide and Supplier shall have the meaning ascribed in the applicable PO or BPO. Except as otherwise provided herein, the Agreement shall be governed by any applicable provisions of the Uniform Commercial Code ("UCC"), to the extent applicable to the procurement.
Offer and Acceptance: This Agreement reflects Nationwide's offer to purchase the products or services listed in the applicable PO or BPO, at the purchase price stated therein. Performance by Supplier shall constitute Supplier's acceptance of the Agreement, including these PO and BPO Terms and Conditions, and Supplier shall deliver the applicable products or services to Nationwide by the date set forth in the applicable PO or BPO.
Payment and Invoicing
2.1 Payment: Supplier shall, at its own expense, submit invoices in accordance with Supplier Invoicing Guidelines, which shall be made available to Supplier upon request. Nationwide shall pay each itemized invoice within 60 days of receipt of a proper invoice, unless Nationwide disputes such invoice. Each invoice submitted to Nationwide must also include any applicable tax as part of the total amount billed. The amount of the tax must be clearly identified. Alternatively, if the products or services are not subject to any tax, Supplier may provide Nationwide with a written statement citing the reason. If Supplier is unable to satisfy these requirements, Supplier shall notify the Nationwide Purchasing Unit.
2.2 Invoices: The applicable PO or BPO number must appear on all invoices and notices. Nationwide shall only reimburse Supplier for those expenses specified in the applicable PO or BPO. Nationwide shall not be responsible for costs that exceed those costs payable pursuant to Nationwide’s Travel and Expense Policy. Additionally, Nationwide shall not pay for any travel time unless expressly agreed in writing.
2.2 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.
3.1 Confidential Information Definition: “Confidential Information” means all information of either party not generally available to the public which is provided by the disclosing party (the “Disclosing Party”) to the receiving party (the “Receiving Party”), or which the Receiving Party has access to or discovers in the performance of this Agreement, whether in oral, tangible, electronic or other form. “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. Any information relating to an identified or identifiable individual is Confidential Information of Nationwide and not subject to the exceptions to Confidential Information.
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.
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 or 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.
4.4 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 and consistent with generally accepted industry standards for services of a similar nature.
4.5 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.
Indemnities: Supplier is responsible for its own liabilities, including those arising from its own negligent or intentional acts and omissions, and agrees to indemnify, defend, and hold Nationwide harmless from any loss arising from such acts or negligence, including when such loss is asserted by a third party. Supplier agrees to defend, indemnify, and hold Nationwide harmless from and against all liability or damages arising out of any actual or threatened claims, demands, investigations, and causes of action regarding infringement.
Limitation of Liability: EXCEPT FOR A PARTY’S OBLIGATIONS OR LIABILITIES ARISING FROM OR RELATING TO THE INDEMNITIES, CONFIDENTIALITY, AND REPRESENTATIONS AND WARRANTIES SECTIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR LOSS OF GOOD WILL) 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.
Insurance: Supplier agrees to maintain 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.
Audit: Nationwide, or its authorized representative, shall have the right to examine, during regular business hours, any records and other materials relative to this Agreement and maintained by Supplier.
Termination: Nationwide may terminate this Agreement at any time and without case prior to delivery of the products or performance of the services, as applicable. 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.
10.1 Service Locations: To the extent the applicable PO or BPO relates to services, Supplier shall (a) perform such services in the United States; (b) only use individuals located in the United States to provide 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.
10.2 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.
10.3 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.
10.4 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.
10.5 Governing Law and Venue: This Agreement shall be governed by the laws of the State of Ohio, without giving effect to the State of Ohio’s 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.
10.6 Waiver: No term or provisions hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach of the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
10.7 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.
10.8 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, and 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.
10.10 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; and (f) any other terms that by their nature should survive termination or expiration of the Agreement.
10.11 Controlling Document: In the event of a conflict between these PO and BPO Terms and Conditions and the applicable PO or BPO, 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 to govern Nationwide’s purchase of products or services, as applicable, from Supplier, 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.