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PARTICIPATION AGREEMENT

BETWEEN

[VENDOR], (“Vendor”)

AND

Okeanus Science & Technology LLC

d/b/a SeaCatalog.com (“SeaCatalog”)

2261 Denley Road
Houma, LA 70363, USA

 

 

Introduction

This Participation Agreement (the “Agreement”) is between Vendor and SeaCatalog for purposes of Vendor participating in and offering certain items for sale through the SeaCatalog.com website including those products shown in attached Schedule A (“Listed Products”) as maybe be amended by the parties from time to time.

Sale of Listed Products on SeaCatalog.com

Vendor hereby consents to the sale of the Listed Products on SeaCatalog.com and hereby grants to SeaCatalog a non-exclusive, royalty-free worldwide license for this specific purpose, subject to the terms and conditions of this Agreement.

SeaCatalog provides a platform for Vendors and purchasers of Vendor’s products (each, a “Customer” and collectively, “Customers”) to negotiate and complete transactions. Except as set forth in this Agreement, SeaCatalog is not involved in the actual transaction between Vendor and Customers.  Vendor may list any item on SeaCatalog.com provided that it complies with the Product Listing Standards shown in Schedule B to this Agreement.

Without limitation, Vendor may not list any item or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, or fraudulent.  Vendor is solely responsible for accurately describing each Listed Product offered for sale.

Presentation of Listed Products & Product Information

Vendor shall be responsible for preparing and submitting all product descriptions, technical information, definition of features, images and all other information (“Product Information”) required to present all Listed Products on SeaCatalog.com. Vendor shall be responsible for the accuracy and completeness of such Product Information and, except as otherwise specifically agreed in writing between the parties, SeaCatalog shall have no authority to modify the Product Information as provided by Vendor.

SeaCatalog may, at any time or for any reason and in its sole and absolute discretion, (i) decline to accept any or all Listed Products for listing on SeaCatalog.com or (ii) remove any or all Listed Products from SeaCatalog.com.

Listing and Order Management Process

Listed Products will be made available for sale through SeaCatalog.com only after (i) execution of this Agreement and all other necessary documentation by all parties (ii) Vendor’s providing all Product Information of the proposed listing for each Listed Product on SeaCatalog.com, and (iii) acceptance of each Listed Product by SeaCatalog.

Customer orders for Listed Products shall be considered either Standard Customer Orders or RFQ Orders:

  1. Standard Customer Orders are customer orders or portions of customer orders that are substantially complete and for which a price is quoted to the customer at the time the order is placed on com and that results the customer being presented with a firm, fixed price that shall include all shipping and delivery costs (“Delivered Price”) or
  2. RFQ Orders are customer orders or portions of customer orders that require issuance of a Request for Quotation (RFQ) and exchange of additional Product Information between the customer and Vendor before issuance of a Delivered Price to the customer.

Customer orders shall generally be managed as shown below subject to further details established according to the function of SeaCatalog.com and as may be varied by the parties to this Agreement from time to time:

  1. Standard Customer Orders:
    1. For Standard Customer Orders of Listed Products offered on com where SeaCatalog processes Customer order(s) and accepts payment of the Delivered Price, SeaCatalog shall promptly (within one business day) forward Customer information to Vendor by email to a designated email address for further processing and fulfillment along with remittance of all customer proceeds less the applicable Listing Fee and any credit card or bank fees (“Vendor Net Delivered Price”). Upon receipt of Vendor Net Delivered Price, Vendor shall be obligated to ship deliver the ordered Listed Products in accordance with the terms of the accepted Standard Customer Order.
    2. For Standard Customer Orders of Listed Products where SeaCatalog purchases items from Vendor for purpose of offering them for sale on com, Vendor will sell to SeaCatalog and SeaCatalog will purchase the items from Vendor at the applicable SeaCatalog Discount. SeaCatalog shall be responsible for shipping and delivery of any such items in accordance with the terms of the accepted Standard Customer Order.
  2. RFQ Orders:
    1. SeaCatalog will receive RFQ Orders through com order systems and forward all RFQ Orders to Vendor not later than one business day from receipt. Vendor will respond to each RFQ Order in a timely fashion and provide a copy of the response to an email address designated by SeaCatalog.  Vendor shall be responsible to ensure that all configurations and technical aspects of the orders are confirmed with the Customer before a quotation is issued and shall be responsible for shipping and delivery of any such items in accordance with the terms of the accepted Standard Customer Order. Should the customer place an order with Vendor for Listed Products included in an RFQ Order, then SeaCatalog shall be entitled to receive the Listing Fee immediately upon customer payment to Vendor.

     

    All customer service, warranty, support, returns, credit and collection issues with respect to Listed Products sold as provided above shall be the responsibility of Vendor unless otherwise agreed in writing by the parties.  Vendor shall be obligated to

     

    • Payment Terms

     

    SeaCatalog shall be entitiled to receive a listing fee (“Listing Fee”) with respect to all Standard Customer Orders and RFQ Orders as detailed above.  Listing Fees shall be earned in full upon payment by the customer either to SeaCatalog or Vendor.  All Listing Fees shall be considered fully earned by SeaCatalog upon payment by Customer and SeaCatalog shall not be required to provide credit to Vendor for any product returns, warranty claims, allowances or other post-sale consideration given by Vendor to Customer

     

    For items purchased by SeaCatalog from Vendor with the intent of offering said items on SeaCatalog.com, Vendor shall offer SeaCatalog discounted pricing on its products not less than the most favored discounts offered to other sellers of Vendor’s products (“SeaCatalog Discount”).

     

    Listing Fee and SeaCatalog Discount on Vendor’s products shall be equal to the amounts shown in Schedule A.

     

    • Marketing

     

    Unless the parties specifically agree in writing, all marketing and promotion of Listed Products is the responsibility of the Vendor at Vendor’s expense.

     

    • SeaCatalog Reservation of Rights.

     

    SeaCatalog retains the right to determine the content, appearance, design, functionality and all other aspects of SeaCatalog.com, (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the website and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, or to require Vendor not to list, any or all products in SeaCatalog’s sole discretion.

     

    SeaCatalog may in its sole discretion withhold, refuse to process, restrict shipping destinations for, stop or cancel any of Vendor’s transactions. Vendor will stop or cancel orders of Listed Products if requested by SeaCatalog (provided that if Vendor has transferred products to a carrier or shipper, Vendor will use commercially reasonable efforts to stop or cancel delivery by such carrier or shipper).  If Vendor has received proceeds from a Customer for which SeaCatalog has cancelled an order, Vendor will refund any funds received in accordance with this Agreement..

     

    • Returns and Refunds. 

    For all of Vendor’s products that are not fulfilled by SeaCatalog, Vendor will accept and process returns, refunds and adjustments in accordance with this Agreement and the SeaCatalog return policies published on the website at the time of the order, and we may inform customers that these policies apply to Listed Products. Vendor will promptly provide refunds and adjustments that it is obligated to provide under the applicable SeaCatalog return policies and as required by law, and in no case later than thirty (30) days after the obligation arises.

     

     

     

     

    • Termination of the Agreement

     

    Either party may terminate this Agreement upon 30 days written notice; provided, however that termination shall not affect or reduce any amounts SeaCatalog is entitled to receive under this Agreement.

     

    • Intellectual Property Rights

     

    The sale or offering for sale of the Listed Products on SeaCatalog.com shall not affect any patent, copyright or trademark rights of Vendor or any other parties.  Vendor represents and warrants that it has authority to sell or offer for sale all Listed Products through SeaCatalog.com.

     

    • Sales Taxes

     

    Except in the case where SeaCatalog has taken ownership of any Listed Products prior to sale to the end customer, payment of any sales taxes to any jurisdiction related to the sale of Listed Products shall be the responsibility of Vendor.  Should SeaCatalog be obligated by any law or regulation to collect and pay any such sales taxes then Vendor hereby authorizes SeaCatalog to do so from proceeds received from the customer and make all such payments of taxes on Vendor’s behalf subject to providing documentation of such payment to Vendor upon request.

     

    • Privacy

     

    Vendor will not directly or indirectly disclose, convey or use any Customer information or other data or information acquired from SeaCatalog as a result of the Agreement, the transactions contemplated hereby or the parties’ performance hereunder (collectively, “SeaCatalog Transaction Information”), except as may be necessary for Vendor to perform its obligations under this Agreement, provided that it ensure that every recipient uses the information only for that purpose and complies with any restrictions applicable to you related to that information.  The terms of this Agreement do not prevent you from using other information that you obtain separately from the SeaCatalog Transaction Information, even if such information is identical to SeaCatalog Transaction Information, provided, however, that you do not target communications based upon the intended recipient being a SeaCatalog.com Customer.

     

    • No Warranties

     

    The SeaCatalog.com website and any related services provided by SeaCatalog are provided on an “as is” basis.  SeaCatalog makes no representations or warranties of any kind, express or implied, including, without limitation any representations or warranties regarding:

    • Merchantability, fitness for a purpose, title and non-infringement,
    • That SeaCatalog.com will meet Vendor’s requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error,
    • That the information, content, materials or products included on the site will be as represented by Vendor, available for sale at the time of fixed price sale, lawful to sell or that Vendor or Customers will perform as promised,
    • Any implied warranty arising from course of dealing or usage of trade, and
    • Any obligation, liability, right, claim or remedy in tort.

     

    • General Release, Exculpation and Limitation of Liability

     

    • If a dispute arises between Vendor and one or more Customers, Vendor releases SeaCatalog from any claims, demands and damages of every kind and nature, known and unknown arising out of or in any way connected with such disputes.

     

    • SEACATALOG WILL NOT BE LIABLE TO VENDOR FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE COM WEBSITE, ITS PERFORMANCE UNDER THIS AGREEMENT, OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH SEACATALOG.COM.

     

    • IF SEACATALOG FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR IS OTHERWISE IN BREACH OF OR IN DEFAULT UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY IN RESPECT THEREOF SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE LISTING FEES PAID TO SEACATALOG IN RESPECT TO THE SUBJECT TRANSACTION OR TRANSACTIONS.

     

     

    Vendor will defend, indemnify and hold harmless SeaCatalog, SeaCatalog.com and each of their shareholders, affiliates (and their respective employees, officers, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys’ fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of Vendor’s representations, warranties, or obligations set forth in this Agreement; or (ii) Vendor’s own website or other sales channels, the products Vendor sells, any SeaCatalog.com content Vendor provides, all advertisement, offer, sale or return of any Listed Products or other products or services Vendor sells, any actual or alleged infringement of any intellectual property or proprietary rights by any Listed Products and other products or services Vendor sells or content Vendor provide, or Vendor taxes or the collection, payment or failure to collect or pay Vendor taxes.

     

    • Choice of Law

     

    This Agreement shall be governed by, and construed in accordance with, the laws of the United States of American and the State of Delaware without regard to its conflicts of law principles.  The foregoing provisions regarding governing law and submission to jurisdiction shall survive termination or expiration of this Agreement.

     

    • Arbitration

     

    Each party consents that any dispute or claim relating in any way to this Agreement will be resolved by binding arbitration as described in this paragraph.  The arbitration will be conducted by the American Arbitration Association (AAA) under its rules.  Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.