Vendor Participation Terms and Conditions

[print-me target=”div#content” title=”Print Agreement”] Date: As of May 15, 2017

Welcome to the SeaCatalog.com site (the “Site”) and our listing services and sales platform (the “Services”). Any individual or entity wishing to access the Site and use the Services (each a “Vendor”) to sell items listed by a Vendor for sale on the Site from time to time (“Listed Products”) must accept the Vendor Participation Terms and Conditions (the “Agreement”) without change. BY REGISTERING FOR AND USING THE SERVICES, VENDOR AGREES TO AND SHALL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE SITE ARE INCORPORATED HEREIN BY REFERENCE.

VENDOR’S CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING SEACATALOG’S POSTING OF ANY CHANGES WILL CONSTITUTE VENDOR’S ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF VENDOR DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, VENDOR MUST DISCONTINUE USE OF THE SERVICES OR THE SITE.

1. SeaCatalog Responsibilities.

1.1 SeaCatalog’s Role and Function.

Okeanus Science & Technology LLC, d/b/a SeaCatalog.com, a Louisiana limited liability company located at 2261 Denley Road, Houma, Louisiana 70363, USA (“SeaCatalog”) provides a platform for third-party vendors and customers to negotiate and complete transactions. SeaCatalog is not involved in the actual transaction between vendors and customers, except as set out in SeaCatalog Vendor Procedures and Guidelines available on the Site located at https://seacatalog.com/vendor-guidelines/ (the “Vendor Guidelines”) which are incorporated by reference and integrated into this Agreement. Vendor may list any item on the Site unless it is a prohibited item as defined in the Vendor Guidelines or otherwise prohibited by law.

1.2 SeaCatalog Reservation of Rights.

SeaCatalog, in its discretion, reserves the right to:
1. change any of the terms and conditions contained in this Agreement or the Vendor Guidelines governing the Site or Services at any time (“Changes”) subject to Section 1.2(b);
2. determine the content, appearance, design, functionality, and all other aspects of the Site and the Services (including the right to redesign, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site and the Service, and any element, aspect, portion or feature thereof, from time to time), and to delay, suspend listing of, refuse to list, de-list, or require Vendor not to list, any or all products in SeaCatalog’s discretion;
3. withhold for investigation, refuse to process, restrict shipping destinations for, stop or cancel any of Vendor’s Transactions;
4. report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties; and
5. take any measures available to remedy or address any breaches of this Agreement, including, without limitation, issuing warnings, suspension or termination of service, delisting items, denying access, removal of materials on the Site, withholding remittances or payments, or suspending or terminating Service.
Changes will be effective upon posting of the revisions on the Site. Notice of Changes will be posted on the Site for no fewer than 30 days. Vendor is responsible for reviewing the notice and any applicable Changes. Changes to referenced Vendor Guidelines may be posted without notice to Vendor;

2. Vendor Responsibilities.

2.1 General.

Vendor uses the Site and the Services at its own risk. Use of the Site and Services is limited to parties that may lawfully enter into and form contracts under applicable law. Upon registration, Vendor must provide its legal name, address, phone number, primary contact name, primary contact e-mail address, as well as any necessary bank or other payment information (“Vendor’s Account”), appropriate tax identity information required for the administration of tax laws. SeaCatalog may request other necessary payment information from Vendor from time-to-time.

2.2 Vendor’s Obligation.

By entering into this Agreement and listing a product, Vendor agrees to complete transactions of such listings as described by this Agreement. Vendor acknowledges that by not fulfilling these obligations, its action or inaction may be legally actionable, and if SeaCatalog determines Vendor account has been used for any such action or inaction, remittances and payments may be withheld or forfeited, and SeaCatalog may take any measures available to remedy or address any such action or inaction including delisting items, suspending or terminating Services or Vendor’s access to the Site, or contacting appropriate law enforcement authorities.

2.3 Items Offered on the Site.

Vendor may list for sale or offer to list for sale only such items for which it is able to meet product shipment schedules as Vendor publishes within each product listing it posts on the Site (“Stated Delivery Schedule”):

Stock Items: Vendor must have individual items or goods currently in inventory, or must be able to produce or procure such items so as to meet the Stated Delivery Schedule unless otherwise agreed in writing with the customer in accordance with Section 2.10; or
RFQ Items: If Vendor offers customized or made-to-order items, or those items or goods which require construction or assembly, Vendor must have in inventory or must be able to produce or procure all necessary component parts and be able to complete any required construction or assembly so as to fulfill the order within the Stated Delivery Schedule, unless otherwise agreed in writing with the customer in accordance with Section 2.10.

2.4 Vendor Procedures and Guidelines.

Vendor shall abide by the SeaCatalog.com Vendor Guidelines for conducting sales. The Vendor Guidelines explain the processes, acceptable conduct, and prohibited practices. Pursuant to Section 1.2, SeaCatalog may change these Vendor Guidelines in the future, and Changes will be effective immediately upon posting without notice to Vendor. Vendor should refer regularly to Vendor Guidelines to understand current procedures and policies and to be sure that the items Vendor offers for sale remain authorized for sale on the Site. Vendor retains all responsibility for complying with Vendor Guidelines.

2.5 Intellectual Property Rights.

Vendor shall ensure that Listed Products are authentic and do not infringe on the rights of any third party. Therefore:

Anti-Counterfeiting Policy. The sale of counterfeit products, including any products that have been illegally replicated, reproduced, or manufactured, is strictly prohibited. If Vendor sells counterfeit goods, SeaCatalog may immediately suspend or terminate Vendor’s selling privileges. In addition, SeaCatalog will not pay Vendor until SeaCatalog is confident its customers have received the products they ordered. The sale of counterfeit goods may also lead to legal action by rights holders as well as civil and criminal penalties.
No Infringement. Without limitation, no item that Vendor lists nor any link or post that Vendor makes to any related materials may (i) infringe any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); (ii) constitute libel or slander or be otherwise defamatory; or (iii) be counterfeited, illegal, stolen, or fraudulent.
If SeaCatalog determines Vendor account has been used to engage in fraud or other illegal activity, remittances and payments may be withheld or forfeited. This policy is in addition to, and in no way limits, Sea Catalog’s remedies.

2.6 Non-Solicitation; Non-Circumvention; Right to Sell with Competitors.

1. Non-Solicitation; Non-Circumvention. Neither Vendor nor any of its representatives shall directly or indirectly:
  1. interfere with or disrupt any business relationship, contractual or otherwise, between SeaCatalog and any other party, including customers or prospective customers, suppliers, and prospective suppliers, agents, and employees of SeaCatalog,
  2. solicit or attempt to solicit any person or entity who is either
    1. a customer, employee, or prospect of SeaCatalog, or
    2. provides goods or services to SeaCatalog

if such solicitation or attempted solicitation is for the purpose of inducing the person or entity to cancel, reduce, or replace goods or services obtained through, or provided to, SeaCatalog or otherwise restrict their business or relationship with SeaCatalog, or

seek to circumvent this Agreement by directing or funding transactions that would otherwise be made through the Site, through third parties, or through any private sale between Vendor and any customer.

Right to Sell with Competitors. This Agreement does not preclude Vendor from entering into an agreement with any other person or entity related to the sale or distribution of Listed Products, including those persons or entities that provide e-commerce websites similar to or competitive with SeaCatalog or the Site (“Competitors”), provided, however, that if the Vendor enters into an agreement with Competitors, Vendor must notify SeaCatalog within 5 Business Days of Vendor’s decision to enter such an agreement.

2.7 Compliance with Laws; Fraud; Investigation; Disclosure of Information; Government Approval; Vendor Taxes.

Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. Vendor agrees to comply with all applicable laws, statutes, and regulations. Vendor may not register under a false name or use an invalid or unauthorized credit card/banking information. Vendor may not impersonate any other vendor or use another vendor’s password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and SeaCatalog will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
Investigation. SeaCatalog has the right, but not the obligation, to monitor any activity and content associated with the Site and investigate as SeaCatalog deems appropriate. SeaCatalog also may investigate any reported violation of its policies, Vendor Guidelines, or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension, or termination of service, denying access, and removal of any materials on the Site, including listings. SeaCatalog reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
Disclosure of Information. Pursuant to Section 1.2(a)(iv) and in order to cooperate with governmental requests, to protect SeaCatalog’s systems and customers, or to ensure the integrity and operation of SeaCatalog’s business and systems, SeaCatalog may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
Government Approval. If any notification, registration, or approval by one or more government entities (each an “Approval”) is required for giving legal effect in any applicable jurisdiction to this Agreement or the transactions contemplated under this Agreement, Vendor shall take whatever steps may be necessary to properly obtain Approval and shall be responsible for any charges or fees incurred in connection with obtaining such Approval prior to listing any items for which such Approval may be required. SeaCatalog is not obligated to post listings for items wherein concerns remain about such Approval. Vendor has the burden to provide SeaCatalog with satisfactory evidence that such Approval is not required or has been obtained in such cases.
Vendor Taxes. Vendor agrees that:
1. it is the Vendor’s responsibility to determine whether Vendor Taxes, as defined below, apply to the transactions and to collect, report, and remit the correct Vendor Taxes to the appropriate tax authority;
2. SeaCatalog is not obligated to determine whether Vendor Taxes apply and is not responsible to collect, report, or remit any Vendor Taxes arising from any transaction, except to the extent SeaCatalog expressly agrees to receive taxes or other transaction-based charges in connection with tax calculation services made available by SeaCatalog and used by Vendor;
3. it is Vendor’s responsibility to comply with all customs laws and regulations, including, without limitation, applicable duty and tax requirements; import/export restrictions; and restrictions on chemical or hazardous substances, waste and electrical equipment recycling, batteries, or packaging, and whether in the United States, the European Union, or any other jurisdiction;
4. it is Vendor’s responsibility to address any permits, licenses, registrations, or certifications for the import or export of goods that Vendor lists on the Site; and
5. Vendor shall indemnify and hold SeaCatalog harmless for any Action arising out of or in any way contemplated under the provisions of this Section 2.7(e). This policy is in addition to, and in no way limits, SeaCatalog’s remedies.

“Vendor Taxes” means taxes on all sales, goods and services, including, without limitation, use, excise, import, export, value added (VAT), consumption, and other taxes and duties assessed, incurred, or required to be collected or paid for any reason in connection with any advertisement, offer, or sale of Listed Products on or through the Site, or otherwise in connection with any action, inaction, or omission of Vendor or any affiliate of Vendor’s, or any of Vendor’s or its respective employees, agents, contractors, or representatives.

2.8 Source.

For each item Vendor lists on the Site, Vendor shall provide to SeaCatalog the state or country from which the item ships. Vendor shall provide to SeaCatalog (using the processes and timing that SeaCatalog designate) any requested information regarding shipment, tracking (to the extent available), and order status, and SeaCatalog may make any of this information available to the customer.

2.9 Customer Communications.

Vendors shall use the Site’s vendor portal to communicate with customers concerning customer orders, payment, or shipping confirmation of Listed Products in a format and manner reasonably acceptable to SeaCatalog.

2.10 Confirmation of Shipment.

Vendor shall promptly, after shipment of a customer’s order (or any portion of the customer’s order), accurately inform SeaCatalog that the order has been shipped (and, in the case of a customer order that is shipped in more than one shipment, accurately inform SeaCatalog which portion(s) of the order has been shipped), using SeaCatalog’s standard functionality for communicating such information when SeaCatalog makes that functionality available to Vendor (“Confirmation of Shipment”). Failure to provide Confirmation of Shipment within the time frame specified by SeaCatalog may result in cancellation (or direction for Vendor to stop or cancel) any such transaction. Vendor shall stop or cancel any such transaction upon such request by SeaCatalog.

2.11 Password Security.

Vendor’s password may be used only to access the Site, use the Services, electronically sign Vendor’s Transactions, and review Vendor’s completed transactions. Vendor is solely responsible for maintaining the security of Vendor’s password. Vendor may not disclose Vendor’s password to any third party and is solely responsible for any use of or action taken under Vendor’s password on this Site. If Vendor’s password is compromised, Vendor must change Vendor’s password.

2.12 Vendor Representations and Warranties.

By entering into this Agreement and posting a listing, Vendor represents and warrants to SeaCatalog that:

Vendor is a business that is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which its business is registered and that Vendor is registering for the Services within such jurisdiction;
Vendor has all requisite rights, power, and authority to enter into this Agreement and perform its obligations hereunder;
any information provided or made available by Vendor (or its affiliates) to SeaCatalog (or its affiliates) is at all times accurate and complete including descriptions of any item it lists;
Vendor shall stop or cancel orders of Listed Products if SeaCatalog requests that Vendor do so (provided that if Vendor has transferred Listed Products to the applicable carrier or shipper, Vendor shall use commercially reasonable efforts to stop or cancel delivery by such carrier or shipper) and Vendor shall refund any customer that has been charged for an order that SeaCatalog stops or cancels;
Vendor shall not engage in any unfair, competitive, misleading, or deceptive practices with respect to SeaCatalog, SeaCatalog’s trademarks, or any item(s) sold through the Site, including any product disparagement or “bait-and-switch” practices;
Vendor shall not circumvent nor attempt to circumvent any of the terms of the Agreement;
Vendor has obtained all material licenses, authorizations, approvals, consents, or permits required by applicable laws (including the rules and regulations of all authorities having jurisdiction over the manufacture and sale of the goods) to conduct its business and to perform its obligations under this Agreement;
Vendor’s entering into and performance under this Agreement will not violate, conflict with, require consent under, or result in any breach or default under any applicable law or the provisions of any material contract or agreement to which Vendor is a party, or to which any of its material assets are bound; and
Vendor’s use of the Site does not and shall not violate any existing agreements, whether in contract or otherwise, prohibiting the use of the Site or any Services offered by SeaCatalog, including, but not limited to, distributor agreements, authorized reseller agreements, agreements regarding sales territories or regions, or similar geographic or geopolitical bounds, and Vendor shall indemnify and hold SeaCatalog harmless for any actions, claims, costs, demands, losses, damages (actual and consequential), judgments, penalties, interest and expenses including reasonable attorneys’ fees of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (each, an “Action”), arising out of or in any way connected with such disputes. This policy is in addition to, and in no way limits, SeaCatalog’s remedies.

3. Vendor’s License Grant.

By entering into this Agreement and listing an item, Vendor grants SeaCatalog a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content Vendor submits to SeaCatalog and its affiliates, and to sublicense the foregoing rights to its affiliates and to the operator(s) of any website or other online point of presence (other than the Site) through which the Site, or products or services available thereon, are syndicated, offered, merchandised, advertised or described; provided, however, that SeaCatalog shall not alter any of Vendor’s trademarks from the form provided by Vendor (except to re-size trademarks to the extent necessary for presentation, so long as the aspect ratio of such trademarks remain the same) and shall comply with Vendor’s removal requests as to specific uses of Vendor’s trademarks (provided Vendor is unable to do so using standard functionality made available to Vendor via the Site or Services); provided further, however, that nothing in this Agreement shall prevent or impair SeaCatalog’s right to use without Vendor’s consent the content and any other materials provided by Vendor, to the extent that such use is allowable without a license from Vendor or Vendor’s affiliates under applicable law (for example, under fair use under copyright law, referential use under trademark law, or valid license from a third party). Vendor represents and warrants that Vendor owns or otherwise controls all of the rights to the content Vendor submited to SeaCatalog and its affiliates, and that the use of such materials by SeaCatalog and its affiliates will not infringe upon or violate the rights of any third party. SeaCatalog may in its discretion disclose or make mention that Vendor uses SeaCatalog’s Services or lists product on the Site in any marketing or other promotional materials regardless of medium or format.

4. Consent to Contact; Transactional Information.

4.1 Consent to Contact.

SeaCatalog and its affiliates may communicate with Vendor in connection with Vendor’s listings, sales, and the Services, electronically and in other media, and Vendor consents to such communications regardless of any customer communication preferences (or similar preferences or requests) Vendor may have indicated on the Site or by any other means. When Vendor uses the Services, some personally identifiable information about Vendor, Vendor profile, product feedback, and other Vendor information may be displayed on the Site and may be viewed by potential customers.

4.2 Transactional Information.

Vendor shall not, and shall not cause Vendor’s affiliates to, directly or indirectly disclose, convey or use any order information or other data or information acquired by Vendor or Vendor’s affiliates from SeaCatalog or its affiliates (or otherwise) as a result of the Agreement, the transactions contemplated hereby or the parties’ performance hereunder (collectively, “Transaction Information”), except Vendor may disclose this information as necessary for Vendor to perform Vendor’s obligations under this Agreement, provided that Vendor ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to Vendor related to that information. The terms of this Section 4.2 do not prevent Vendor from using other information that Vendor obtains independently from the Transaction Information, even if such information is identical to the Transaction Information, provided, however, that Vendor shall not target communications to the recipient on account of the intended recipient being a user of the Site.

5. Transaction Processing.

5.1 By registering for or using the Site.

Vendor authorizes SeaCatalog to act as Vendor’s agent for purposes of processing payments, refunds and adjustments for Vendor’s Transactions (as defined below), receiving and holding Sales Proceeds (as defined below) on Vendor’s behalf, remitting Sales Proceeds to Vendor’s bank account and paying SeaCatalog and its affiliates amounts Vendor owes in accordance with this Agreement or other agreements Vendor may have with SeaCatalog or its affiliates. “Sales Proceeds” means the gross proceeds from any of Vendor’s Transactions, including all shipping and handling and other charges, but excluding any taxes separately stated and charged and any fees and other amounts owed to SeaCatalog under this Agreement. “Vendor’s Transaction” means any sale of Vendor’s items through the Site.

5.2

SeaCatalog may receive payments from customers through various online systems, ACH, wire transfer, or check. By receiving such payments, SeaCatalog is merely facilitating Vendor’s Transactions and neither SeaCatalog nor SeaCatalog’s affiliates are the purchaser of the Vendor’s goods as a result of this agreement.

5.3

SeaCatalog’s obligation to remit funds received by SeaCatalog on Vendor’s behalf is limited to funds that SeaCatalog has actually received less amounts owed to SeaCatalog, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement.

5.4

Vendor shall resolve any dispute directly with customer.

5.5

Vendor must provide SeaCatalog true and accurate information when registering and must maintain and update that information as applicable. SeaCatalog may at any time require Vendor to provide any financial, business, or personal information SeaCatalog requests to verify Vendor’s identity. Vendor shall not impersonate any person or use a name it is not legally authorized to use.

5.6

Sales Proceeds can be credited only to bank accounts in the United States or any other country shown as supported by SeaCatalog’s standard functionality and enabled for Vendor’s Account (which functionality may be modified or discontinued by SeaCatalog at any time without notice).

5.7

SeaCatalog is generally available 7 days per week/24 hours per day, except for scheduled downtime due to system maintenance. SeaCatalog can initiate payments to Vendor only on a Business Day when the automated clearinghouses are open for business. For purposes of this Agreement, a “Business Day” is a Monday through Friday, excluding U.S. federal banking holidays. SeaCatalog will inform Vendor of each completed transaction using SeaCatalog’s standard procedures. In addition, Vendor can access payment information online in Vendor’s user account.

5.8

Information related to Vendor’s Transactoins will be reflected in Vendors’ online user account summary. Unless otherwise agreed in writing by SeaCatalog and Vendor, SeaCatalog will initiate a payment to Vendor’s Account on a rolling 14-day cycle (“Payment Date”) based on the original date of Vendor’s registration with the Service or on the next Business Day if the scheduled Payment Date falls on a non-Business Day.
If Vendor requests a change to the scheduled Payment Date, the 14-day cycle will be reset to the requested Payment Date.
SeaCatalog will initiate a transfer to Vendor’s Account on each Payment Date for the total amount of Sales Proceeds Vendor received from customers’ authorized payment, less any fees or other amounts SeaCatalog may collect under this Agreement, any refunds, adjustments, or other amounts paid to customers in connection with Vendor’s Transactions.
The amount of fees for Services will be posted to Vendor’s online user account and will be deducted from payments to be remitted to Vendor on the next Payment Date. Without limiting SeaCatalog’s rights to collect any amounts Vendor owes, SeaCatalog‘s receipt of Sales Proceeds discharges Vendor’s obligation to pay applicable fees and other amounts under this Agreement to the extent the Sales Proceeds equal or exceed the fees and other amounts Vendor owes and the Sales Proceeds are applied to the payment of those fees and amounts.

5.9

On occasion, SeaCatalog may send Vendor a paper check or wire transfer instead of an electronic credit to Vendor’s Account. SeaCatalog will do so, for instance, if Vendor’s bank will not accept an electronic credit to Vendor’s Account.

5.10

On certain items, Vendor may offer terms or payment schedules tied to completion of the items. In this event, Listing Fees or other fees paid to SeaCatalog will be due and payable when funds are received by by SeaCatalog or Vendor. Should Vendor receive direct customer payment in respect of a transaction, then Vendor shall promptly advise SeaCatalog and be obligated to immediately pay SeaCatalog any Listing Fees or other fees due on account of such transaction.

5.11

As a security measure, SeaCatalog or its affiliates may impose transaction limits on some or all customers and vendors relating to the value of any transaction, disbursement, or adjustment; the cumulative value of all transactions, disbursements, or adjustments during a period of time; or the number of transactions per day or other period of time. Neither SeaCatalog nor its affiliates will be liable to Vendor: (a) if SeaCatalog does not proceed with a transaction, disbursement, or adjustment that would exceed any limit established by SeaCatalog or its affiliates for a security reason, or (b) if SeaCatalog or its affiliates permits a customer to withdraw from a transaction because the Site or Services are or unavailable following the commencement of a transaction.

5.12

If SeaCatalog or its affiliates reasonably conclude based on information available to SeaCatalog or its affiliates that Vendor’s actions or performance in connection with the Services may result in customer disputes, chargebacks, or other claims, then SeaCatalog may, in its discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to Vendor in connection with the Services or this Agreement until the completion of any investigation(s) regarding any Vendor actions or performance in connection with this Agreement. SeaCatalog shall not be liable to Vendor if SeaCatalog acts in accordance with the provisions of this Section 5.13.

5.13

All notices shall be sent via e-mail or shall be posted on the Site or by any other means specified by SeaCatalog. SeaCatalog will send notices to Vendor at the e-mail address maintained in SeaCatalog’s records for Vendor. Vendor shall monitor its e-mail messages frequently to ensure awareness of any notices sent by SeaCatalog. Vendor shall send notices to SeaCatalog using the functionality for contacting SeaCatalog provided in the Vendor Guidelines.

5.14

SeaCatalog may refuse service to anyone for any reason.

5.15

SeaCatalog shall bear risk of credit card fraud occurring in connection with Vendor’s Transactions, and Vendor shall bear all other risk of fraud or loss; provided, however, that SeaCatalog shall not bear the risk of credit card fraud in connection with any Listed Products that are not fulfilled strictly in accordance with the order information and shipping information that SeaCatalog provides customer or Vendor.

5.16

SeaCatalog reserves the right to seek reimbursement from Vendor if SeaCatalog, in its discretion, decides to reimburse customer; provides a refund to customer if Vendor cannot promptly deliver the goods; discovers erroneous or duplicate transactions; or receives a chargeback from customer’s credit card issuer for the amount of customer’s purchase from Vendor. SeaCatalog may obtain reimbursement of any amounts owed by Vendor to SeaCatalog by deducting from future payments owed to Vendor, reversing any credits to Vendor’s Account, charging Vendor’s credit card, or seeking such reimbursement from Vendor by any other lawful means. Vendor authorizes SeaCatalog to use any or all of the foregoing methods to seek reimbursement, including the debiting of Vendor’s credit card or bank account.

5.17

SeaCatalog reserves the right, upon termination of this Agreement or Vendor’s use of the Services, to set off against any payments to be made to Vendor, an amount determined by SeaCatalog to be adequate to cover chargebacks, refunds, adjustments, or other amounts paid to customers in connection with Vendor’s Transactions from Vendor’s Account for a prospective 3-month period. At the end of such 3-month period following termination, SeaCatalog shall disburse to Vendor any amount not used to offset chargebacks, refunds, adjustments, or such other amounts paid to customers, or seek reimbursement from Vendor via any of the means authorized in Section 5.17 for any additional amount required to offset chargebacks, refunds, adjustments, or other amounts paid to customers, as applicable.

5.18

Sales Proceeds received by SeaCatalog may be held in an account with SeaCatalog (a “Payment Account”) and will represent an unsecured claim against SeaCatalog. Sales Proceeds are not insured by the Federal Deposit Insurance Corporation. Prior to disbursing funds to Vendor, SeaCatalog may combine Sales Proceeds held with the funds of other users of the Services, invest them, or use them for other purposes permitted by applicable laws. Vendor shall not receive interest or any other earnings on any Sales Proceeds. To the extent required by applicable laws, SeaCatalog will not use any funds held on Vendor’s behalf for its corporate purposes, will not voluntarily make such funds available to its creditors in the event of bankruptcy or for any other purpose, and will not knowingly permit its creditors to attach such funds.

6. Warranty; General Release; Indemnity; Limitation of Liability.

6.1 General Release.

Because SeaCatalog is not involved in transactions between customers and vendors or other participant dealings, if a dispute arises between one or more participants, Vendor releases SeaCatalog (and its respective agents and employees) from all Actions arising out of or in any way connected with such disputes.

6.2 Warranties.

THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. SEACATALOG MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (b) THAT THE SITE OR THE SERVICES WILL MEET VENDOR’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; (c) THAT THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE WILL BE AS REPRESENTED BY VENDORS, AVAILABLE FOR SALE AT THE TIME OF FIXED PRICE SALE, LAWFUL TO SELL, OR THAT VENDORS OR CUSTOMERS WILL PERFORM AS PROMISED; (d) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (e) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SEACATALOG. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SEACATALOG DISCLAIMS ANY AND ALL SUCH WARRANTIES.

6.3 Limitation of Liability.

SEACATALOG SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, OR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE, AND WHETHER OR NOT SEACATALOG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE USE OF, OR INABILITY TO USE THE SITE, SERVICES, TRANSACTION PROCESSING SERVICES, OR RESULTING FROM ANY MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SITE OR SERVICES. IN NO EVENT SHALL SEACATALOG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SEACATALOG PURSUANT TO THE APPLICABLE FEES IN THE 6-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

6.4 Indemnity.

VENDOR SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SEACATALOG AND ITS AFFILIATES (AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AGENTS AND REPRESENTATIVES) FROM AND AGAINST ANY AND ALL ACTIONS THAT ARISE OUT OF OR RELATES TO: (a) ANY ACTUAL OR ALLEGED BREACH OF VENDOR’S REPRESENTATIONS, WARRANTIES, OR OBLIGATIONS SET FORTH IN THIS AGREEMENT; OR (b) VENDOR’S OWN WEBSITE OR OTHER SALES CHANNELS, THE PRODUCTS VENDOR SELLS OR MARKETS, ANY CONTENT VENDOR PROVIDES, THE ADVERTISEMENTS, OFFERS, SALES OR RETURNS OF ANY LISTED PRODUCTS, ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY ANY PRODUCTS VENDOR SELLS OR CONTENT VENDOR PROVIDES, OR VENDOR TAXES OR THE COLLECTION, PAYMENT OR FAILURE TO COLLECT OR PAY VENDOR TAXES.

7. Dispute Resolution.

7.1 Applicable Law.

The laws of the State of Louisiana (without giving effect to its conflict of laws principles) shall govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement.

7.2 Disputes between Vendor and SeaCatalog.

Vendor agrees to the following:
1. Before commencing any dispute resolution procedures under Section 7.2(b) arising out of or relating to any claim or dispute relating in any way to this Agreement or Vendor’s use of the Site or Services against SeaCatalog or its affiliates (each a “Dispute”), Vendor must submit a notice of such Dispute specifying, in detail, the precise nature and grounds of such Dispute to SeaCatalog.
2. SeaCatalog shall review such Dispute and reply to Vendor with a proposed resolution. If the proposed resolution does not resolve the Dispute, at its discretion, SeaCatalog shall either (1) invite Vendor to propose a resolution, or (2) involve an external, neutral ombudsman of SeaCatalog’s choosing.
3. If the Dispute remains unresolved then prior to engaging in further action under Section 7.2(b), Vendor agrees to attend a face-to-face meeting to include: Vendor, Vendor’s attorney (if retained), a representative from SeaCatalog, and SeaCatalog’s attorney. This meeting may occur at a neutral meeting place, if in person, or via video conferencing (such as Skype), so long as all parties can both see and hear one other.
4. Vendor agrees that Vendor must exhaust these internal dispute resolution procedures before proceeding to dispute resolution under Section 7.2(b). Vendor’s failure to exhaust the dispute resolution procedures under this Section 7.2(a) shall waive any right of Vendor to obtain relief under any method. This policy is in addition to, and in no way limits, SeaCatalog’s remedies.
Each party consents that one of the following methods shall be used to resolve any Dispute only after exhausting the dispute resolution procedures under Section 7.2(a):
1. If Vendor is a U.S.-based entity: Any Actions arising out of or relating to this Agreement must be brought exclusively in a court of competent jurisdiction sitting in either Terrebonne Parish, Louisiana, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any Action arising out of or relating to this Agreement brought in any state or federal court sitting in either Terrebonne Parish; and (ii) any claim that any Action brought in any such court has been brought in an inconvenient forum. Any Action with respect to this Agreement must be brought within 6 months after the cause of such Action arises or such cause of action will be deemed to be waived. If any Action is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys’ fees and other costs incurred in that Action, in addition to any other relief to which the successful party may be entitled.
2. If Vendor is a non-U.S.-based entity: Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, must be settled by confidential binding arbitration in either Terrebonne Parish in accordance with the international dispute resolution procedures arbitration rules of the American Arbitration Association/International Centre for Dispute Resolution by a single arbitrator appointed in accordance with the said rules, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Emergency arbitrator and expedited arbitration provisions shall apply, however, either party may, without inconsistency with this agreement to arbitrate, seek from a court any provisional remedy that may be necessary to protect trademarks, copyrights, or other rights or property pending the establishment of the arbitral tribunal or its determination of the merits of the controversy. The arbitrator has the power to award to the prevailing party all costs of the arbitration, including attorney’s fees and expenses, and other costs incurred in the arbitration, in addition to any other relief to which it or they may be entitled.

7.3 Disputes Between Vendor and Customers.

Because SeaCatalog is not the agent of Vendor and is not the agent of customer for any purpose, except as set out in Section 5, SeaCatalog shall not act as either party’s agent in connection with resolving any disputes between participants related to or arising out of any transaction. SeaCatalog urges vendors and customers to cooperate with each other to resolve such disputes.

8. General Provisions.

8.1 Assignment.

Vendor shall not assign any of its rights under this Agreement, except with the prior written consent of SeaCatalog. The preceding sentence applies to all assignments of rights, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section 8.1 is void.

8.2 Entire Agreement.

This Agreement, including any terms and conditions incorporated herein by reference, and the general terms and conditions of the Site, including, but not limited to, privacy notices and conditions or terms of use, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes and cancels all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.

Interpretation. For purposes of this Agreement (a) (i) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (b) definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neutral forms; (c) unless the context otherwise requires, references herein to an agreement, instrument, or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (d) other documents referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

8.3 No Agency; Third-Party Beneficiary.

Subject to Section 5.1, Vendor and SeaCatalog are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between parties. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person, other than the parties hereto, any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of SeaCatalog, Vendor, and relying customers or vendors.

8.4 No Waiver.

SeaCatalog shall not be considered to have waived any of its rights or remedies described in this Agreement unless the waiver is in writing and signed by the relevant party. No delay or omission by SeaCatalog in exercising its rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. SeaCatalog’s failure to enforce the strict performance of any provision of this Agreement shall not constitute a waiver of either party’s right to subsequently enforce such provision or any other provisions of this Agreement.

8.5 SeaCatalog Employee Participation.

Employees of SeaCatalog and its affiliates are permitted to participate in their personal capacity in transactions conducted through this Site (unless they have confidential information about a particular item). Employees of SeaCatalog and its affiliates, when participating in any transaction in their personal capacity, are subject to this Agreement and the same policies and guidelines as any customer or vendor on this Site.

8.6 Severability.

If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions.

8.7 Termination.

SeaCatalog, in its discretion, may terminate this Agreement, access to the Site or the Services, or any current fixed price sales immediately without notice for any reason. SeaCatalog, in its discretion, also may prohibit any Vendor from listing items for fixed price or ‘Request a Quote’ sales.

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