Public Marketplace. Means (a) an electronic marketplace or exchange through which products or services are offered or sold, which marketplace or exchange may be accessed concurrently by more than one buyer and more than one seller ("many-to-many"), including, without limitation, the public marketplaces or exchanges of the following entities: e2Open, Inc., eChip, Inc. and eConnections, Inc., and (b) virtually private views or instantiations operating within or as a subset of a Public Marketplace ("one-to-many").
... Public Marketplace does not include (a) instantiations of an electronic marketplace designed to facilitate purchase and sale transactions solely between only one unique and constant buyer buying from one or many sellers in that marketplace or (b) instantiations of an electronic marketplace designed to facilitate purchase and sale transactions solely between only one unique and constant seller selling to one or many buyers in that marketplace. To the extent a single entity uses any Trade Product to buy and sell using the same instantiation of such Trade Product, it shall be considered a Public Marketplace. For the purposes of this definition, when determining whether one or more buyers or sellers has access to an electronic marketplace or exchange, the following rules shall apply: (i) if one or more Affiliates of a person or entity that has access to an electronic marketplace or exchange have access to the marketplace or exchange, such person or entity and its Affiliate(s) that have access to the marketplace or exchange shall be counted as one buyer or seller, as the case may be, (ii) if one or more divisions or operating units of an entity have access to an electronic marketplace or exchange, such divisions and/or operating units and the entity shall be counted as one buyer or seller, as the case may be, and (iii) if one or more divisions or operating units of Affiliates have access to an electronic marketplace or exchange, such divisions and/or operating units and the Affiliates shall be counted as one buyer or seller, as the case may be.
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