Fund Agreement between NFS, GMFCT, GMF, GMCMI & GDSI



 Exhibit 10.39 
 FUND AGREEMENT 
 This Agreement dated as of the first day of October 1, 2002 is made by and among
Nationwide Financial Services, Inc. (including any affiliates and/or subsidiaries listed on Exhibit A), Gartmore Mutual Fund Capital Trust, which serves as adviser, Gartmore Morley Capital Management, Inc., which serves as adviser, Gartmore
Distribution Services, Inc., which services as distributor to Gartmore Mutual Fund (the “Trust”) and the Trust’s mutual funds (the “Funds”). In this Agreement, Gartmore Mutual Fund Capital Trust, Gartmore Morley Capital
Management, Inc., Gartmore Distribution Services, Inc., and Gartmore Mutual Funds are collectively referred to as “Gartmore.” 
 WHEREAS, Nationwide Financial Services, Inc. (“NFS”) or a subsidiary or affiliate thereof (collectively referred to as “NFS Affiliate/Subsidiary”) provides administrative and/or recordkeeping services to variable
contracts, which may include, but are not limited to, variable annuity contracts, variable life insurance policies and various retirements plans which meet the definition of retirement plans under Sections 401, 403 and 457 of the Internal Revenue
Code (the “Code”) (collectively, “Contracts”); and 
 WHEREAS, NFS Affiliate/Subsidiary may issue variable annuity
contracts and variable life insurance policies through separate accounts (“Variable Accounts”) as listed on Exhibit A; and 
 WHEREAS, the Contracts allow for the allocation of net amounts received by NFS to sub-accounts which correspond to each Fund for investment in shares of the Funds; and 
 WHEREAS, selection of a particular sub-account is made by the contract owner or by participants in various types of retirement plans and such contract owners and/or participants may reallocate
their investment options among the sub-accounts in accordance with the terms of the Contracts; and 
 WHEREAS, NFS and Gartmore mutually desire the inclusion of the Funds as investment options for the Contracts; and 
 NOW THEREFORE,
NFS and Gartmore, in consideration of the promises and undertakings described herein, agree that the Funds will be available in products and services provided by NFS subject to the following: 
 REPRESENTATIONS AND UNDERTAKINGS 
 REPRESENTATIONS BY NFS 
 NFS or an NFS Affiliate/Subsidiary agrees to perform certain administrative services
(“Services”) as listed on Exhibit B 
 NFS represents that the NFS Affiliates/Subsidiaries, including Variable Accounts, have been
established and are in good standing under the state law in which they were organized. The Variable Accounts are registered under the Investment Company Act of 1940, unless otherwise exempt therefrom. 
 NFS and its agents shall make no representations concerning the Funds or Fund shares except those contained in the Funds’ then current prospectuses,
Statements of Additional Information or other documents produced by Gartmore (or an entity on its behalf) which contain information about the Funds. NFS agrees to allow a reasonable period of time for Gartmore to review any advertising and sales
literature drafted by NFS (or agents on its behalf) with respect to the Funds prior to use and prior to submitting such material to any regulator. 
 NFS acknowledges that the identity of Gartmore (and its affiliates’ and/or subsidiaries’) customers and all information maintained about those customers constitute the valuable property of Gartmore. NFS agrees that, should it come
into contact or possession of any such information (including, but not limited to, lists or compilations of the identity of such customers), NFS shall hold such information or property in confidence and shall not use, disclose or distribute any such
information or property except with Gartmore prior written consent or as required by law or judicial process. This paragraph shall survive the expiration or termination of this Agreement. 
  

 1 








 NFS acknowledges that the services provided for under this Agreement by Gartmore are not exclusive and
that the same skill will be used in performing services to other companies in similar contexts. NFS represents that it will use its best efforts to give equal emphasis and promotion to shares of the Funds as is given to other investment options that
may be available in NFS contracts. 
 NFS represents that the Contracts marketed as annuity contracts and/or life insurance policies are
currently treated as annuity contracts and/or life insurance policies under the appropriate provisions of the Code, and that it shall make every effort to maintain such treatment. NFS will promptly notify Gartmore upon having a reasonable basis for
believing that the Contracts have ceased to be treated as annuity contracts or life insurance policies, or that the Contracts may not be so treated in the future. 
 For Contracts issued through the Variable Accounts, NFS represents that each Variable Account is a “segregated asset account” and that interests in each Variable Account are offered exclusively through the
purchase of a “variable contract”, within the meaning of such terms pursuant to Section 1.817-5(f)(2) of the Federal Tax Regulations, and that it shall make every effort to continue to meet such definitional requirements. NFS shall
promptly notify Gartmore upon having a reasonable basis for believing that such requirements have ceased to be met or that they may not be met in the future. 
 REPRESENTATIONS BY GARTMORE 
 Gartmore acknowledges that it receives substantial
savings as a result of NFS performing those Services listed on Exhibit B on behalf of the Funds. 
 Gartmore and its agents shall make no
representations about NFS except those contained in publicly available documents or other documents produced by NFS (or an entity on its behalf). Gartmore agrees to allow a reasonable period of time for NFS to review any advertising and sales
literature drafted by Gartmore (or agents on its behalf) with respect to NFS prior to use and prior to submitting such material to any regulator. 
 Gartmore acknowledges that the identity of NFS (and its affiliates’ and/or subsidiaries’) customers and that all information maintained about those customers constitute the valuable property of NFS. Gartmore agrees that, should it
come into contact or possession of any such information (including, but not limited to, lists or compilations of the identity of such customers), Gartmore shall hold such information or property in confidence and shall not use, disclose or
distribute any such information or property except with NFS’ prior written consent or as required by law or judicial process. This paragraph shall survive the expiration or termination of this Agreement. 
 Gartmore acknowledges that the services provided for under this Agreement by NFS or an NFS Affiliate/Subsidiary are not exclusive and that the same skill
will be used in performing services to other companies in similar contexts. Gartmore represents that it will use its best efforts to give equal emphasis and promotion to NFS as is given to companies in similar contexts. 
 Gartmore represents that the Funds are currently qualified as regulated investment companies under Subchapter M of the Code, and that the Funds shall
make every effort to maintain such qualification. Gartmore shall promptly notify NFS upon having a reasonable basis for believing that the Funds have ceased to so qualify, or that they may not qualify as such in the future. 
 Gartmore represents that any insurance Funds utilized in the Contracts currently comply with the diversification requirements pursuant to
Section 817(h) of the Code and Section 1.817-5(b) of the Federal Tax Regulations, if required, and that such Funds will make every effort to maintain the Funds’ compliance with such diversification requirements, unless the Funds are
otherwise exempt from Section 817(h) and/or except as otherwise disclosed in each Fund’s prospectus. Gartmore will notify NFS promptly upon having a reasonable basis for believing that the Funds have ceased to so qualify, or that the Funds
might not so qualify in the future. 
  

 2 








 CUSTOMER PRIVACY 
 Gartmore acknowledges that it has read, and to the extent applicable agrees to comply with the Nationwide’s privacy policy that is explained in Nationwide’s Privacy Statement, herein
attached as Exhibit F, which may be updated from time to time. 
 Gartmore agrees to comply with all laws, rules, regulations, and ordinances
relating to privacy, confidentiality, security, data security, and the handling of customer information which may from time to time be established. 
 Gartmore agrees not to disclose or use any consumer nonpublic personal information (including nonpublic personal financial information and nonpublic personal health information), which may be supplied by Nationwide to Gartmore in
performance under this Agreement other than to: 
  

	 	 a)
	 carry out the purpose for which the information was provided; and 


  

	 	 b)
	 to use or disclose the information as otherwise permitted or required by law. 


 NFS agrees to comply with all laws, rules, regulations, and ordinances relating to privacy, confidentiality, security, data security, and the handling of customer information which may from time
to time be established. 
 NFS agrees not to disclose or use any consumer nonpublic personal information (including nonpublic personal
financial information and nonpublic personal health information), which may be supplied by Gartmore to NFS in performance under this Agreement other than to: 
  

	 	 a)
	 carry out the purpose for which the information was provided; and 


  

	 	 b)
	 to use or disclose the information as otherwise permitted or required by law. 


 This provision will survive and continue in full force and effect after the termination of this Agreement. 

TRADING 
 Subject to the
terms and conditions of this Agreement, NFS shall be appointed to, and agrees to act, as a limited agent of Gartmore for the sole purpose of receiving instructions from authorized parties as defined by the Contracts for the purchase and redemption
of Fund shares prior to the close of regular trading each Business Day. A “Business Day” shall mean any day on which the New York Stock Exchange is open for trading and on which the Fund calculates its net asset value as set forth in the
Fund’s most recent prospectus and Statement of Additional Information. Except as particularly stated in this paragraph, NFS shall have no authority to act on behalf of Gartmore or to incur any cost or liability on its behalf. 
 Until such time as Gartmore and NFS are able to utilize the National Securities Clearing Corporation (“NSCC”) Defined Contribution Clearing and
Settlement (“DCC&S”) Fund/SERV system; 
 Gartmore will use its best efforts to provide to NFS or its designated agent closing
net asset value, change in net asset value, dividend or daily accrual rate information and capital gain information by 7:00 p.m. Eastern Time each Business Day. NFS or its agent shall use this data to calculate unit values. Unit values shall be used
to process the same Business Day’s contract transactions. Orders derived from, and in amounts equal to, instructions received by NFS prior to the Close of Trading on the New York Stock Exchange on any Business Day (“Day 1”) shall be
transmitted without modification (except for netting or aggregating such orders) to Gartmore by 9:00 A.M. Eastern Time on the next Business Day. Such trades will be effected at the net assets value of each Fund’s shares calculated as of the
Close of Trading on Day 1. Gartmore will not accept any order made on a conditional basis or subject to any delay or contingency. NFS shall only place purchase orders for shares of Funds on behalf of its customers whose addresses recorded on
NFS’ books are in a state or other jurisdiction in which the Funds are registered or qualified for sale, or are exempt from registration or qualification as confirmed in writing by Gartmore. 
 Until such time as Gartmore and NFS are able to utilize the DCC&S Fund/SERV system, each party shall, as soon as practicable after its receipt of an
instruction or confirmation transmitted, verify its receipt of such instruction or confirmation, and in the absence of such verification such a party to whom an instruction or confirmation is sent shall not be liable for any failure to act in
accordance with such instruction or confirmation, and the sending party 
  

 3 








 may not claim that such an instruction or confirmation was received by the other. Each party shall notify
the other of any errors, omissions or interruptions in, or delay or unavailability as promptly as possible. 
  

	 	 a)
	 For those purchase orders not transmitted via the DCC&S Fund/SERV system, NFS shall initiate payment to Gartmore or its designated agent in federal funds no
later than 1:00 P.M. on the Business Day following the day on which the instructions are treated as having been received by Gartmore pursuant to this Agreement. 


  

	 	 b)
	 For those redemption orders not transmitted via the DCC&S Fund/SERV system, Gartmore or its designated agent shall initiate payment in federal funds no later
than 1:00 P.M. on the Business Day following the day on which the instructions are treated as having been received by Gartmore pursuant to this Agreement. 


 At such time as Gartmore and NFS are able to transmit information via the NSCC’s DCC&S Fund/SERV System: 
  

	 	 a)
	 Orders derived from, and in amounts equal to, instructions received by NFS prior to the Close of Trading on Day 1 shall be transmitted without modification
(except for netting and aggregation of such orders) via the NSCC’s DCC&S Fund/SERV system to Gartmore no later than 5:00 A.M. Eastern Time on the Next Business Day. Such trades will be effected at the net asset value of each Fund’s
shares calculated as of the Close of Trading on Day 1. 


  

	 	 b)
	 Gartmore and NFS shall mutually agree there may be instances when orders shall be transmitted to Gartmore via facsimile no later than 9:00 A.M. rather than
through the DCC&S Fund/SERV system. In such instances, such orders shall be transmitted to Gartmore via facsimile no later than 9:00 A.M. Eastern Time on the next Business Day. 


  

	 	 c)
	 With respect to purchase and redemption orders received by Gartmore on any Business Day for any Fund, within the time limits set forth in this Agreement,
settlement shall occur consistent with the requirements of DCC&S Fund/SERV system. 


 At such time as Gartmore and NFS
are able to transmit information via the DCC&S Fund/SERV system; Gartmore or its designated agent shall send to NFS, via the DCC&S Fund/SERV system, verification of net purchase or redemption orders or notification of the rejection of such
orders (“Confirmations “) on each Business Day for which NFS has transmitted such orders. Such confirmations shall include the total number of shares of each Fund held by NFS following such net purchase or redemption. Gartmore, or its
designated agent, shall submit in a timely manner, such confirmations to the DCC&S Fund/SERV system in order for NFS to receive such confirmations no later than 11:00 A.M. Eastern Time the next Business Day. Gartmore or its designated agent will
transmit to NFS via DCC&S NETWORKING system those Networking activity files reflecting account activity. In addition, within five (5) business days after the end of each month, Gartmore or its affiliate will send NFS a statement of account
which shall confirm all transactions made during that particular month in the account. 
 NATIONWIDE ADVISORY SERVICES WRAP PROGRAM

 NFS has retained PFPC INC. (“PFPC”) to perform administrative and shareholder services in support of the Wrap Program,
including the transmission of all purchase, redemption, and exchange orders with respect to Fund transactions in the Mutual Fund Wrap (“Orders”). NFS hereby authorizes Distributor to accept Orders placed by PFPC on NFS’s behalf. NFS
shall notify Distributor in writing 10 days prior to the effective date of any revocation of this authorization. 
 DOCUMENTS AND OTHER
MATERIALS 
 DOCUMENTS PROVIDED BY NFS 
 NFS agrees to provide Gartmore, upon written request, any reports indicating the number of shareholders that hold interests in the Funds and such other information (including books and records)
that Gartmore may reasonably request or as may be necessary or advisable to enable it to comply with any law, regulation or order. 
  

 4 








 DOCUMENTS PROVIDED BY GARTMORE 
 Within 10 Business Days after the end of each calendar month, Gartmore shall provide NFS, or its designee, a monthly statement of account, which shall
confirm all transactions made during that particular month. 
 Gartmore shall promptly provide NFS, or cause NFS to be provided with, a
reasonable quantity of the Funds’ prospectuses, Statements of Additional Information and any supplements thereto. 
 NOTICE

 Each notice required by this Agreement shall be given in writing to: 
 NFS Financial Services, Inc. 
 One Nationwide Plaza 1-09-V3 
 Columbus, Ohio 43215

 Attention: Securities Officer 
 Fax Number: 614-249-2112 
 Gartmore Mutual Fund Capital Trust 
 1200 River Road

 Conshohocken, PA 19428 
 Attention: Treasurer 
 Fax Number: (484) 530-1327 
 Any party may change its address by notifying the
other party(ies) in writing. 
 VOTING 
 For Variable Accounts that are registered under the 1940 Act and so long as and to the extent that the SEC continues to interpret the 1940 Act to require pass-through voting privileges for variable contract owners,
NFS shall distribute all proxy material furnished by Gartmore (provided that such material is received by NFS or its designated agent at least 10 Business Days prior to the date scheduled for mailing to contract owners) and shall vote Fund shares in
accordance with instructions received from the contract owners who have interests in such Fund shares. NFS shall vote the Fund shares for which no instructions have been received in the same proportion as Fund shares for which said instructions have
been received from the contract owners, provided that such proportional voting is not prohibited by a contract owner’s plan or trust document, if applicable. NFS and its agents will in no way recommend an action in connection with or oppose or
interfere with the solicitation of proxies in the Fund shares. 
 EXPENSES 
 All expenses incident to the performance by NFS under this Agreement shall be paid by NFS. Likewise, all expenses incident to the performance by Gartmore
under this Agreement shall be paid by Gartmore. 
 NFS shall not bear any of the expenses for the cost of registration of the Funds’
shares, preparation of the Funds’ prospectuses, proxy materials, and reports and the preparation of other related statements and notices required by law except as otherwise mutually agreed upon by the parties to the Agreement. 
 For NFS’ annual mailing to customers of product and fund prospectuses, Gartmore will pay the lesser of: 

 

	 	 a.
	 The cost to print individual fund prospectuses; or 


  

	 	 b.
	 Gartmore’s portion of printing costs if NFS does not use individual prospectuses, but reprints fund prospectuses in another format.



 Should a Fund no longer be available in an NFS contract, Gartmore shall be responsible for any and all expenses incurred
as a result of removing such Fund as an available investment option under the Contract. 
  

 5 








 Should NFS desire to no longer have a Fund available in an NFS contract, NFS shall be responsible for any
and all expenses incurred as a result of removing such Fund as an available investment option under the Contract. 
 Should a removal of a
fund as an available investment option be mutually desired by the parties, the parties agree to equally share any expenses incurred as a result of removing such Fund as an available investment option. 
 Both NFS and Gartmore agree to provide reasonable advance notice of the election to remove a fund as an available investment option in order to permit
the parties to file documentation as may be required under applicable law. 
 CONFLICTS 
 Each party agrees to inform the other of the existence of, or any potential for, any material conflicts of interest between the parties and any possible
implications of the same. 
 It is agreed that if it is determined by a majority of the members of the Boards of Directors of the Funds, or a
majority of the Funds’ disinterested Directors, that a material conflict exists caused by NFS, NFS shall at its own expense, take whatever steps are necessary to remedy or eliminate such material conflict. 
 It is agreed that if it is determined by NFS that a material conflict exists caused by Gartmore, Gartmore shall at its own expense, take whatever steps
are necessary to remedy or eliminate such material conflict. 
 INDEMNIFICATION 
 Each party shall promptly notify the other party(ies) in writing of any situation which presents or appears to involve a claim which may be the subject of
indemnification under this Agreement and the indemnifying party shall have the option to defend against any such claim. In the event the indemnifying party so elects, it shall notify the indemnified party and shall assume the defense of such claim,
and the indemnified party shall cooperate fully with the indemnifying party, at the indemnifying party’s expense, in defense of such claim. Notwithstanding the foregoing, the indemnified party shall be entitled to participate in the defense of
such claim at its own expense through counsel of its own choosing. Neither party shall admit to wrong-doing nor make any compromise in any action or proceeding which may result in a finding of wrongdoing by the other party without the other
party’s prior written consent. Any notice given by the indemnifying party to an indemnified party or participation in or control of the litigation of any such claim by the indemnifying party shall in no event be deemed an admission by the
indemnifying party of culpability, and the indemnifying party shall be free to contest liability among the parties with respect to the claim. 
 INDEMNIFICATION BY NFS 
 NFS agrees to reimburse and/or indemnify and hold
harmless Gartmore and each of its directors, officers, employees, agents and each person, if any, who controls Gartmore within the meaning of the Securities Act of 1933 (the “1933 Act”) (collectively, “Affiliated Party”) against
any losses, claims, damages or liabilities (“Losses”) to which Gartmore or any such Affiliated Party may become subject under the 1933 Act or otherwise, insofar as such losses (or actions in respect thereof) arise out of or are based upon,
but not limited to: 
  

	 (1)
	 Any untrue statement or alleged untrue statement of any material fact contained in information furnished by NFS; 


  

	 (2)
	 The omission or alleged omission to state in the Registration Statements, Prospectuses, Informational Brochures or other similar material, a material fact
required to be stated therein or necessary to make the statements therein not misleading; 


  

	 (3)
	 Conduct, statements or representations of NFS or its agents, with respect to the sale and distribution of Contracts for which Fund shares are an investment
option; 


  

	 (4)
	 The failure of NFS or an NFS Affiliate/Subsidiary to provide the services and furnish the materials under the terms of this Agreement;



  

	 (5)
	 A breach of this Agreement or of any of the representations contained herein; or 


  

 6 









	 (6)
	 Any failure to register Contracts or Variable Account that do not meet any exemptions under federal or state securities laws, state insurance laws or failure to
otherwise comply with applicable laws, rules, regulations or orders. 


 Provided however, that NFS shall not be liable in
any such case to the extent that such statement, omission or representation or such alleged statement, alleged omission or alleged representation was made in reliance upon and in conformity with written information furnished to NFS by or on behalf
of Gartmore specifically for use therein. 
 NFS shall reimburse any legal or other expenses reasonably incurred by Gartmore or any
Affiliated Party in connection with investigating or defending any such Losses, provided however, that NFS shall have prior approval of the use of said counsel or the expenditure of said fees. 
 This indemnity agreement shall be in addition to any liability that NFS may otherwise have. 
 INDEMNIFICATION BY GARTMORE 
 Gartmore agrees to reimburse and/or indemnify and
hold harmless NFS and/or NFS Affiliate/Subsidiary and each of its directors, officers, employees, agents and each person, if any, who controls NFS or NFS Affiliate/Subsidiary within the meaning of the Securities Act of 1933 (the “1933
Act”) (collectively, “Affiliated Party”) against any losses, claims, damages or liabilities (“Losses”) to which NFS, NFS Affiliate/Subsidiary or any such Affiliated Party may become subject under the 1933 Act or otherwise,
insofar as such Losses (or actions in respect thereof) arise out of or are based upon, but not limited to: 
  

	 (1)
	 Any untrue statement or alleged untrue statement of any material fact contained in information furnished by Gartmore, including but not limited to, the
Registration statements, Prospectuses, or sales literature of the Funds; 


  

	 (2)
	 The omission or alleged omission to state in the Registration Statements, Prospectuses, Informational Brochures or other similar material, a material fact
required to be stated therein or necessary to make the statements therein no misleading; 


  

	 (3)
	 Gartmore’s failure to keep applicable Funds qualified as regulated investment companies as required by the 1940 Act and applicable regulations thereunder,
and if applicable, fully diversified as is required by the Code and applicable regulations thereunder; 


  

	 (4)
	 The failure of Gartmore to provide the services and furnish the materials under the terms of this Agreement; 


  

	 (5)
	 A breach of this Agreement or of any of the representations contained herein; or 


  

	 (6)
	 A failure to register the Funds under federal or state securities laws or to otherwise comply with such laws, rules, regulations or orders.



 Provided however, that Gartmore shall not be liable in any such case to the extent that such statement, omission or
representation or such alleged statement, alleged omission or alleged representation was made in reliance upon and in conformity with written information furnished to Gartmore by or on behalf of NFS specifically for use therein. 
 Gartmore shall reimburse any legal or other expenses reasonably incurred by NFS or any Affiliated Party in connection with investigating or defending any
such Losses, provided however, that Gartmore shall have prior approval of the use of said counsel or the expenditure of said fees. 
 This indemnity agreement shall be in addition to any liability which Gartmore may otherwise have. 
 SERVICE FEES 
 In consideration for the Services provided by NFS pursuant to this Agreement, Gartmore will calculate
and pay, or cause one of its affiliates to pay, and NFS or an NFS Affiliate/Subsidiary that is registered as a broker/dealer, will be entitled to receive from Gartmore a fee (“Service Fee”). Such fee will be calculated at an annualized
rate equal to the rates shown on Exhibit C of the average daily net assets of each Fund for which NFS performed administrative services during the period in which they were earned. 
  

 7 








 The Service Fees will be paid to NFS, or its designee, by electronic funds transfer as soon as
practicable, but no later than 30 days after the end of the period in which they were earned. If the Fund assets administered by NFS are less than $1 billion as of December 31 of the prior calendar year, the Service Fees will be paid on a
quarterly basis. Once assets are greater than $1 billion, the Service Fees will be paid on a monthly basis. The Service Fee payment will be accompanied or preceded by a statement showing the calculation of the amounts being paid by Gartmore for the
relevant period and such other supporting data as may be reasonably requested by NFS. 
 The Service Fee shall be paid either by: 

 

	 	 (a)
	 Gartmore or one of its affiliates from general operating funds; 


  

	 	 (b)
	 Gartmore or one of its affiliates from funds received pursuant to a shareholder service plan (“Rule 12b-1 Plan”) a copy of which is attached as Exhibit
D and incorporate herein by reference. Services are listed in Exhibit E; 


  

	 	 (c)
	 Administrative Service fee paid by the Trust; or 


  

	 	 (d)
	 a combination thereof. 


 The
Service Fee shall be calculated as an annualized percentage of the average aggregate amount invested in the Funds for the applicable period. The average aggregate amount shall be computed by totaling the aggregate investment on each business day
during the period and dividing by the total number of Business Days during the period. 
 The parties agree that a Service Fee will be paid
to NFS or its designee according to this Agreement with respect to each Fund as long as shares of such Fund are held by an NFS Affiliate/Subsidiary on behalf of the beneficial owners of contracts issued by an NFS Affiliate/Subsidiary. This provision
will survive the termination of this Agreement. 
 NFS and Gartmore agree that the Service Fees described in this Agreement are for
administrative and distribution services of the Funds only, and do not constitute payment in any manner for investment advisory services for the Fund or for costs of administrative and distribution services on behalf of the Contracts. 
 Fees paid pursuant to a Rule 12b-1 Plan may be terminated at any time, without the payment of any penalty, by the vote of a majority of the members of
the Board of Trustees of the Trust who are not interested persons of the Trust and who have no direct or indirect financial interest in the operation of the Rule 12b-1 Plan or in any related agreements to the Rule 12b-1 Plan (“Disinterested
Trustees”) or by a majority of the outstanding Shares, each with respect to a class of a 12b-1 Fund, upon delivery of written notice thereof to the parties to this Agreement. 
 This Agreement will terminate automatically in the event of its assignment as defined in the 1940 Act or upon termination of the Distributor underwriting agreement with the Fund 
 COMPLIANCE WITH AGREEMENT 
 The
forbearance or neglect of any party to insist upon strict compliance by another party with any of the provisions of this Agreement, whether continuing or not, or to declare a forfeiture of termination against the other parties, shall not be
construed as a waiver of any rights or privileges of any party hereunder. No waiver of any right or privilege of any party arising from any default or failure of performance by any party shall affect the rights or privileges of the other parties in
the event of a further default or failure of performance. 
 TERMINATION 
 This Agreement shall terminate as to the availability of shares of the Funds for new Contracts: 
  

	 (1)
	 at the option of NFS or Gartmore upon at least 90 days advance written notice to the other; 


  

	 (2)
	 at any time upon Gartmore ‘s election, if the Funds determine that liquidation of the Funds is in the best interest of the Funds or their beneficial owners.
Reasonable advance notice of election to liquidate shall be provided to NFS in order to permit the substitution of Fund shares, if necessary, with shares of another investment company pursuant to the 1940 Act and other applicable securities
regulations; 


  

	 (3)
	 if the applicable annuity contracts and life insurance policies are not treated as annuity contracts or life insurance policies by the applicable regulators or
under applicable rules and regulations; 


  

 8 









	 (4)
	 if the Variable Accounts are not deemed “segregated asset accounts” by the applicable regulators or under applicable rules and regulations;



  

	 (5)
	 at the option of NFS, if Fund shares are not available for any reason to meet the requirements of Contracts as determined by NFS. Reasonable advance notice of
election to terminate (and time to cure) shall be furnished by NFS; 


  

	 (6)
	 at the option of NFS or Gartmore, upon institution of relevant formal proceedings against the broker-dealer(s) marketing the Contracts, the Variable Accounts,
NFS, an NFS Affiliate/Subsidiary or the Funds by the NASD, the IRS, the Department of Labor, the SEC, state insurance departments or any other regulatory body; 


  

	 (7)
	 upon a decision by NFS, in accordance with the 1940 Act and applicable regulations, to substitute such Fund shares with the shares of another investment company
for Contracts for which the Fund shares have been selected to serve as the underlying investment medium. NFS shall give at least 60 days written notice to Gartmore of any proposal to substitute Fund shares; 


  

	 (8)
	 upon assignment of this Agreement unless such assignment is made with the written consent of each party; and 


  

	 (9)
	 in the even Fund shares are not registered, issued or sold pursuant to federal law and state securities laws, or such laws preclude the use of Fund shares as an
underlying investment medium of Contracts issued or to be issued by an NFS Affiliate/Subsidiary. Prompt written notice shall be given by either party to the other in the event the conditions of this provision occur. 


 JURISDICTION 
 This Agreement
shall be construed and the provisions hereof interpreted under and in accordance with the laws of Ohio, without respect to its choice of law provisions and in accordance with the 1940 Act. In the case of any conflict, the 1940 Act shall control.

 PARTNERSHIPS/JOINT VENTURES 
 Nothing in this Agreement shall be deemed to create a partnership or join venture by and among the parties hereto. 
 AMENDMENTS TO THIS AGREEMENT 
 This Agreement supersedes any and all prior Agreements made by and between the parties.

 This Agreement may not be amended or modified except by a written amendment, which includes any amendments to the Exhibits, executed by
all parties to the Agreement. 
 EXECUTION 
 Each party hereby represents and warrants to the other that the persons executing this Agreement on its behalf are duly authorized and empowered to execute and deliver the Agreement and that the Agreement constitutes
a legal, valid and binding obligation, and is enforceable in accordance with its terms. Except as particularly set forth herein, neither party assumes any responsibility hereunder and will not be liable to the other for any damages, loss of data,
delay or any other loss whatsoever caused by events beyond its control. 
  

 9 








 This Agreement may be executed by facsimile signature and it may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 
  

					
	 NATIONWIDE FINANCIAL SERVICES, INC.
	  	 	  	 GARTMORE MUTUAL FUND CAPITAL TRUST

			
	 /s/ William G. Goslee
	  	 	  	 /s/ Thomas M. Sipp

	 By: William G. Goslee
	  	 	  	 By: Thomas M. Sipp

	 Title: Vice President
	  	 	  	 Title: Vice President

			
	 GARTMORE MUTUAL FUNDS
	  	 	  	 GARTMORE DISTRIBUTION SERVICES, INC.

			
	 /s/ Gerald J. Holland
	  	 	  	 /s/ Gerald J. Holland

	 By: Gerald J. Holland
	  	 	  	 By: Gerald J. Holland

	 Title: Treasurer & CFO
	  	 	  	 Title: Senior V.P.

			
	 GARTMORE MORLEY CAPITAL MANAGEMENT, INC.
	  	 	  	 
			
	 /s/ Thomas M. Sipp
	  	 	  	 
	 BY: Thomas M. Sipp
	  	 	  	 
	 TITLE: Vice President
	  	 	  	 

  

 10 








 EXHIBIT A 
 This Exhibit corresponds to the Fund Agreement dated May 1, 2002 
 Registered Broker Dealers

 Nationwide Advisory Services, Inc. 
 Nationwide Investment Services Corporation 
 Affiliates and Subsidiaries 
 Nationwide Life Insurance Company 
 Nationwide
Life and Annuity Insurance Company 
 Nationwide Trust Company, FSB 
 Nationwide Retirement Solutions, Inc. 
 National Deferred Compensation, Inc. 

Nationwide Life Insurance Company of America 
 Nationwide Life and Annuity Company of America 
 Variable Accounts 
 Nationwide Variable Account 
 Nationwide Variable Account-II 
 Nationwide Variable Account-3 
 Nationwide
Variable Account-4 
 Nationwide Variable Account-5 
 Nationwide Variable Account-6 
 Nationwide Variable Account-7 
 Nationwide Variable Account-8 
 Nationwide
Variable Account-9 
 Nationwide Variable Account-10 
 Nationwide Variable Account-11 
 Nationwide Variable Account-12 
 Nationwide Variable Account-13 
 Nationwide
Variable Account-14 
 Nationwide Variable Account-15 
 Nationwide Variable Account-16 
 Multi-Flex Variable Account 
 Nationwide VA Separate Account-A 
 Nationwide VA
Separate Account-B 
 Nationwide VA Separate Account-C 
 Nationwide VA Separate Account-D 
 Nationwide VLI Separate Account 
 Nationwide VLI Separate Account-2 
 Nationwide
VLI Separate Account-3 
 Nationwide VLI Separate Account-4 
 Nationwide VL Separate Account 
 Nationwide VL Separate Account-A 
 Nationwide VL Separate Account-B 
 Nationwide VL
Separate Account-C 
 Nationwide VL Separate Account-D 
 Nationwide VL Separate Account-E 
 Nationwide DC Variable Account 
 Nationwide DC variable Account-II 
 NACo
Variable Account 
 Nationwide Governmental Plans Variable Account 
 Nationwide Governmental Plans Variable Account-II 
 Nationwide Qualified Plans Variable Account 
 Nationwide Private Placement Variable Account 
 Nationwide Private Placement Variable Account-II 
 Ohio DC Variable Account 
  

 11 








 EXHIBIT B 
 Administrative Services Provided by NFS 
 Pursuant to the Agreement, NFS shall perform all
administrative and shareholder services with respect to the Contracts and Plans, including but not limited to, the following: 
  

	 1.
	 Maintaining separate records for each Contract owner and each Plan, which shall reflect the Fund shares purchased and redeemed and Fund share balances of such
Contract owners and Plans. Nationwide will maintain accounts with each Fund on behalf of Contract owners and Plans, and such account shall be in the name of Nationwide (or its nominee) as the record owner of shares owned by such Contract owners and
Plans. 


  

	 2.
	 Disbursing or crediting to Contract owners and Plans all proceeds of redemptions of shares of the Funds and all dividends and other distributions not reinvested
in shares of the Funds. 


  

	 3.
	 Supporting and responding to service inquires about the Trust and the Funds from Contract owners and Plans. 


  

	 4.
	 Maintaining and preserving all records required by law to be maintained and preserved in connection with providing the Services for Contract owners and Plans.



  

	 5.
	 Distributing to Contract owners and Plans, to the extent required by applicable law, Funds’ prospectuses, proxy materials, periodic fund reports to
shareholders and other materials that the Funds are required by law or otherwise to provide to their shareholders or prospective shareholders. 


  

	 6.
	 Receiving, aggregating and processing purchase and redemption orders from Contract owners and Plans and placing net purchase and redemption orders with the
Funds’ transfer agent on behalf of the Contract owners and Plans. 


  

 12 








 EXHIBIT C 
 TO FUND AGREEMENT 
 This Exhibit corresponds with the Agreement dated May 1, 2002. 
  

			
	 Funds

	  	Basis Points per Annum


	 A Shares
	  	40 bps
	 C Shares Equity
	  	100 bps
	 C Shares Fixed Income
	  	85 bps
	 D Shares Equity
	  	35 bps
	 D Shares Fixed Income
	  	30 bps
	 Money Market Prime Shares
	  	25 bps
	 Service Shares all funds, except Money Market
	  	40 bps
	 Service Shares Money Market
	  	35 bps
	 Institutional Service Shares Equity (excluding Nationwide Savings Plan accts)
	  	35 bps
	 Institutional Service Shares Fixed Income and Index (excluding Nationwide Savings Plan accts)
	  	25 bps
	 Institutional Service Shares – Nationwide Savings Plan
	  	10 bps
	 Local Fund Shares
	  	7 bps
	 Institutional Shares
	  	0 bps
	 Institutional Shares – Money Market in the Pensions Channel
	  	 
	 For Plans with an Effective date prior to January 1, 2003
	  	23 bps
	 For Plans with an Effective date after January 1, 2003
	  	27.5 bps
	 Nationwide Trust Company Program (Maintenance Fee) Calendar Year 2002 Annual maintenance fee per fund (daily recordkeeping and
quarterly fact sheet)
	  	$2,500
	 Nationwide Trust Company Program – One-Time Set-Up Fee for funds added to the program beginning in October,
2002
	  	$1,500
	 Nationwide Advisory Services (Wrap) Program – One Time Set-Up Fee for Funds
	  	$1,500
	 Nationwide Advisory Services (Wrap) Program – Annual Maintenance Fee
	  	$1,000

  

	 *
	 A Shares of the following funds offered through the deferred compensation channel (IRC §§ 401 and 457 plans) to new entities, retirement plans, or plan
sponsors, as applicable, are subject to the schedule below. Gartmore reserves the right to prospectively withdraw the schedule below at any time, provided however, that entities, plans or plan sponsors that have been offered or accepted revenue
under the schedule below will not be affected. In the event, Gartmore exercises its right to revoke the schedule below, after such revocation, A Shares will be subject to the schedule above. 


  

			
	 Funds

	  	Basis Points per Annum


	 Gartmore Total Return Fund
	  	50 bps
	 Gartmore Millennium Growth Fund
	  	50 bps
	 Nationwide Large Cap Value Fund
	  	50 bps
	 Gartmore Value Opportunities Fund
	  	50 bps
	 Gartmore International Growth Fund
	  	50 bps
	 Gartmore Emerging Markets Fund
	  	50 bps
	 Gartmore Government Bond Fund
	  	50 bps

  

 13 








 EXHIBIT D (12B – 1 Plan) 
 TO FUND AGREEMENT 
  

 14 








 Exhibit E 
 Services Provided by NFS for 12b-1 Fees 
 NFS shall perform services including, but are not
limited to, some or all of the following: 
  

	 1.
	 Shareholder services: 


  

	 	 a.
	 Answering routine shareholder inquiries regarding the Funds 


  

	 	 b.
	 Providing information to shareholders on their investments in the Funds 


  

	 	 c.
	 Processing purchase, exchange and redemption requests from customers and placing orders with GDSI or the Funds’ designated transfer agent



  

	 	 d.
	 Providing personnel and communication equipment used in connection therewith 


  

	 	 e.
	 Providing such other services as Distributor may reasonably request. 


  

	 	 f.
	 Preparing such quarterly reports for Distributor as shall reasonably be required by Distributor. 


  

	 	 g.
	 Maintaining records of sales, redemptions and repurchases of Shares and furnishing the Distributor with such records on request. 


  

	 	 h.
	 Distributing Prospectuses and reports to the Client-shareholders. 


  

	 2.
	 Distribution Fee: 


  

	 	 a.
	 GDSI or an affiliate can make payments to broker/dealers and other eligible institutions for distribution assistance pursuant to an agreement with the
Broker/Dealer; and 


  

	 	 b.
	 Reimbursement pursuant to an agreement in connection with distribution assistance including, but not limited to, the reimbursement of expenses relating to
printing and distributing advertising,sales literature and reports to shareholders. 


  

 15 








 Exhibit F 
 Nationwide’s Privacy Statement 
 Nationwide Financial Privacy Statement

 Nationwide values you as a customer and respects your right to privacy. We recognize that you purchase our products and services
because you trust that we will stand behind our promises. In turn, we pledge our commitment to treating your information responsibly. The Nationwide Financial companies listed below have established the following policies to assure you that we are
committed to protecting your privacy. 
 How do we protect the confidentiality and security of your information? 
 We maintain physical, electronic and procedural safeguards to ensure your personal information is treated responsibly and in accordance with our privacy
policy. We also restrict access to your personal information within our organization to those employees who need to know that information to provide products or services to you, or to conduct Nationwide business. Employees who have access to
customer information may use it only for legitimate business purposes. Additionally, we safeguard customer information in accordance with applicable data security regulations. 
 What personal information do we collect about you? 
 We collect personal
information about you from the following sources: 
  

	 	 •
	 	 Information we receive from you on applications and other forms; 


  

	 	 •
	 	 Information about your transactions with us, our affiliates, or others; and 


  

	 	 •
	 	 Depending upon the product or services you are requesting, information we receive from consumer reporting agencies, medical providers, or others.



 What categories of information do we disclose and to whom? 
 We may disclose the following information to entities that perform marketing and administrative services on our behalf or as required or permitted by law
for legal, regulatory or other purposes: 
  

	 	 •
	 	 Information we receive from you on applications or other forms, such as your name, address, beneficiaries, Social Security number, family member information,
assets, income, and property locations and values. 


  

	 	 •
	 	 Information about your transactions with us, our affiliates, or others, such as your account balance, policy coverage, payment history, the premium you pay, the
shares you purchase, preferences, claims information, and the method of your purchase. 


  

	 	 •
	 	 If required for the products you select, information we receive from consumer reporting agencies and other sources, such as your creditworthiness, motor vehicle
and driver data, medical and employment information, loss history reports, and additional driver data. 


 In certain
special situations, we may share some of your personal information with non-affiliated third parties, including other financial institutions and service providers that provide marketing support to them, to help them market products and services
other than those from Nationwide Financial and its affiliated companies. Before sharing such information relating to you, we will give you a supplemental notice and an opportunity to opt out of this information sharing. 
 Is your medical information confidential? 
 While we sometimes must collect medical information to provide you a product or to pay a claim, we do not use or share it, internally or externally, for any purpose except the following: 
  

	 	 •
	 	 underwriting insurance; 


  

	 	 •
	 	 administering your policy, account, or claim; 


  

	 	 •
	 	 as required or permitted by law; or 


  

 16 









	 	 •
	 	 as otherwise authorized by you. 


 Questions? 
 We value our customers and want you to understand how we use the information we collect. If you have any
questions about our privacy policy, please contact us toll free at 
 Individual Annuities (Best of America®) 
 Life and Health Operations 
 1-866-223-0303

 Nationwide® Retirement Solutions 
 1-877-677-3678 
 National Deferred Compensation 
 1-800-795-4457 
 Pension Operations 
 1-800-470-4889 
  

	 	 •
	 	 You may obtain a description of Nationwide Financial’s procedures that allow you to review your personal information. 


  

	 	 •
	 	 In accordance with our procedures, we will provide you access to your personal information that we control and can reasonably retrieve, upon verification of your
request. 


  

	 	 •
	 	 You may request that we correct your personal information in our files. Please note that Nationwide Financial does not control information given to us by third
parties. So, you will need to contact the third party to correct any information it gave us. 


  

	 	 •
	 	 You may request the name and address of the consumer reporting agency from which we have obtained a report on you, if any. You may request that the consumer
reporting agency provide you with a copy of the report it makes. 


 This privacy statement describes our privacy practices
for both current and former customers. We will provide one copy of this notice to joint policy or contract holders; please share this information with everyone covered by your policy or contract. Upon your request, we will send additional copies of
this statement. 
 Thank you for choosing Nationwide. 
 We look forward to building a lifetime relationship with you. 
  

 17