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| Introduction |
THIS AGREEMENT (AS DEFINED BELOW) DESCRIBES THE TERMS BY WHICH DYESONLINE.COM("Dyesonline" or "we") OFFERS YOU ACCESS TO THE SERVICE. BY CLICKING THE BOX, "Yes, I agree to the terms defined in the User Agreement" IN THE MEMBERSHIP APPLICATION, AND BY ACCESSING OR USING THE SERVICE THEREAFTER, YOU ACCEPT THE AGREEMENT AND AGREE TO BE BOUND BY EACH OF ITS TERMS.
As used herein, the term "Agreement" means this User Agreement, the Exchange Policies, the Privacy Statement, the Fee Statement, and the Glossary, as well as all other terms, conditions, and rules that may be published or displayed from time to time by Dyesonline on this Web site or at any other link designated in this User Agreement, including each amendment, alteration, modification, or supplementation of any and all of the foregoing. All of the foregoing are incorporated by reference here. The terms of such Agreement apply to your use of the Service (as defined below). All amendments are effective 10 days after posting on our site. Your access to or use of the Service on or after such effective date constitutes acceptance of the amendments. This User Agreement may not be otherwise amended except in writing signed by both parties. YOU SHOULD READ THIS AGREEMENT EACH TIME YOU USE THE SERVICE. This Agreement was revised on 16 July 2000.
As used in this User Agreement, "Member," "User," or "you" shall jointly and severally refer to the individual completing the Membership Application and the organization indicated on the Membership Application, unless the context indicates clearly that all Members or Users of the Exchange, including you, are the subject of the reference. As used herein a "Member" is a User that has privileges to use the Service and thereby to make Product Offers, Product Requests, Bids to Buy, and Bids to Sell and enter into Member Buy and/or Sell Arrangements; a User is a person who is entitled to access all or any part of the Web site of the Exchange. For other defined terms please refer to the Glossary (located in the Dyesonline Help tab), all of which are incorporated herein.
By clicking the box, "Yes, I agree to the terms defined in the User Agreement" in the Membership Application, and by accessing or using the Service thereafter, you represent and warrant to Dyesonline and each of the other Users of the Exchange that the individual taking such actions has the authority to enter into the Agreement on behalf of the organization that he or she indicates that he or she represents, that each person designated a representative on the Membership Application to enter into Member Buy and/or Sell Arrangements (as that term is defined below in "Service") on behalf of such organization has the authority to do so, that the Agreement and each Member Buy and/or Sell Arrangement to which such organization becomes a party is binding and enforceable against such organization, that such organization will have the ability to perform its obligations under the Agreement and the Member Buy and/or Sell Arrangements and that the representations and warranties set forth in the Exchange Policies attributed to you are true and correct as to such individual and such organization. All Members of the Exchange are intended third party beneficiaries of the foregoing representations and the agreements set forth in the Agreement, and each Member acknowledges that each other Member is relying upon such representations and agreements.
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| 1. |
Services |
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Subject to the terms and conditions in the Agreement, Dyesonline hereby grants to you a nontransferable, nonexclusive license to access and use the Service solely for your internal use in accordance with the Agreement. We may in our sole discretion add, delete, or change some or all the services included within the Service at any time.
Without limiting the foregoing or expnding any of your rights hereunder, you agree that you will not republish, reproduce, or distribute any of the information available through the Web site of Dyesonline or any e-mail or other communication by or between Members, Dyesonline, and/or any other Member, or make any use of any such information or the facilities of Dyesonline that would allow a third party to have access to or the benefits of the Service.
In addition, you agree to pay the fees and costs for the use of the Service in accordance with and to the extent provided in the Fee Statement, which is incorporated herein by reference, which may be amended from time to time and will be effective as with other amendments to the Agreement. You are responsible for paying all applicable taxes and for all hardware, software, service and other costs you incur to bid, list, post, buy, or sell or otherwise use the Service. Moreover, you shall be responsible for providing and maintaining all communications lines, telephone/transmission services, and all equipment and technology necessary for you to access and use the Service.
DyesOnline is a venue for exchanging information pertaining to business transactions; however, we are not involved in the actual transactions between Members. Nor do we act as a buyer, broker, or seller of any product. We post information provided to us by Members in an effort to enable our Members to conclude transactions or arrangements, if they so choose, with other Members (the "Member Buy and/or Sell Arrangements"); we do not verify to anyone that the information provided to us is accurate or that the exchange of information and terms between Members via our Web site will create any legally binding contracts between or among Members.
Thus, you and each other Member acknowledge and agree that Dyesonline is merely a publisher of the Dyesonline and does not guarantee or become responsible for any obligation arising out of any Member Buy and/or Sell Arrangement or provide any assurance that any Member Buy and/or Sell Arrangement will be ultimately concluded.
You acknowledge and agree that we have no control over (or liability for) the quality, safety, or legality of the products listed, the truth or accuracy of the listings, the ability of sellers to sell product, or buyers to buy product, or the performance by any Member of any obligation (including the completion of any purchase or sale transaction). You and each other Member assumes responsibility for, and acknowledge and agree that Dyesonline has no responsibility for and indemnifies and holds harmless Dyesonline for and from any Loss in any way relating to:
| (a) |
negotiating, documenting, and concluding all Member Buy and/or Sell Arrangements to which you and another Member are parties to in a form that will be enforceable in any jurisdiction that may be relevant to the transactions contemplated by the Member Buy and/or Sell Arrangements;
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| (b) |
ensuring that all any and all Covered Products, the purchase and sale thereof, the delivery and transportation thereof, and any other action or matter relating to or affecting such Covered Products or the purchase and sale thereof (including, without limitation, the Member Buy/Sell Arrangements) comply in all respects with all applicable laws, rules, and regulations (including, without limitation, export/import, registration, labeling, manifesting, health, safety, occupational and environmental laws, rules, and regulations);
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| (c) |
paying, depositing, collecting, and withholding, to the extent required by applicable law, any and all Taxes in any way attributable to the products and activities described in (b); and
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| (d) |
ensuring that the products and activities described in (b) do not cause any harm or damage to any person or property or to the environment.
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| (e) |
that shipment or delivery of the purchased products will be deferred only for purposes of commercial convenience or necessity.
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You and each other Member also make the representations, warranties, and agreements to Dyesonline and each other Member set forth in the Dyesonline policies, all of which are incorporated in this User Agreement.
As used in this Agreement:
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| (x) |
"Covered Products" means any and all items that are the subject of a Product Offer or Purchase Request posting by you or such Member or otherwise offered, advertised, purchased, sold, or intended to be purchased or sold by the user through the use of the Exchange's Web Site or the Service or based, in any part, on information obtained through such Web Site or Service; |
| (y) |
"Loss" or "Losses" means all losses, liabilities, judgments, settlements, fines, Taxes, encumbrances, penalties, claims, suits, costs and BICNETenses (including, without limitation, reasonable attorneys' fees) incurred or sustained by the relevant person; and |
| (z) |
"Tax" or "Taxes" means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, documentary, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated or other tax of any kind whatsoever, or any escheat obligations including any interest, penalty or addition, whether disputed or not. |
Because user authentication on the Internet is difficult, Dyesonline cannot and does not confirm that each Member is who they claim to be. Therefore, because you must be careful in dealing with others to avoid fraud, we encourage you to perform such verifications and checks as you deem necessary to evaluate with whom you are dealing when the identity of your trading partner is revealed during the course of a transaction. Each Member also acknowledges and agrees that Dyesonline is not buying, brokering, or selling any product, and does not provide any service other than the Service.
Moreover, you and each Member transacting business with you agrees with and represents to Dyesonline and each other Member that
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| (a) |
you and the other Members with whom you transact business will not and cannot trade on, or through the indirect or direct use of, the Exchange any futures contracts or options that are subject to regulation by the Commodities Futures Trading Commission or under the Commodities Trading Act of 1922, as amended; |
| (b) |
that the transactions facilitated by or through the Exchange, including all Member Buy and/or Sell Arrangements, are for the exchange of cash commodities for money and are not for speculative purposes; |
| (c) |
that they have the capacity to make (when they are Sellers) and take (when they are Buyers) actual delivery of the goods and that when they are Buyers they expect to take actual delivery of the goods from seller; |
| (d) |
that the Member Buy and/or Sell Arrangements (or any other contracts memorializing the sale transaction) will provide no ability for netting or offsetting in lieu of the Buyer taking actual delivery; and |
| (e) |
that shipment or delivery of the purchased products will be deferred only for purposes of commercial convenience or necessity. You and each other Member also make the representations, warranties and agreements to Dyesonline and each other Member set forth in the Dyesonline policies, all of which are incorporated in this User Agreement. |
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| 2. Right of Refusal and Termination |
Dyesonline may terminate this User Agreement and the license granted to you at any time with or without cause and may refuse to provide the Service to you or any other User at any time, at its sole discretion. Without limiting any other remedies or limiting the foregoing, Dyesonline may suspend or terminate your account if you are found to have engaged in fraudulent activity in connection with our site or if any of your representations, warranties or agreements to or with us has been breached. You may also terminate this User Agreement at any time.
In the case of any termination, you agree to continue to abide by the provisions of the Agreement, which shall remain in full force and effect after such termination, except that the license to use the Service shall be terminated and you shall have no further obligation to pay for the use of the Service other than those accrued upon or before such termination (as determined in accordance with our Fee Statement).
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| 3. Intellectual Property Rights of Dyesonline and Other Parties |
User (defined as any visitor to our Web site, including Members and those who have not registered for membership) acknowledges that the configurations, displays, screens, and all information appearing on or displayed in connection with or contained by Dyesonline on its Web site -- Dyesonline's domain name, the Dyesonline logo, and the mark and trade name the Dyesonline (collectively, "Dyesonline Proprietary Properties") -- are covered by various intellectual property right protections, including domestic and international copyright, trademark, and trade secrecy law. Dyesonline reserves all rights with regard to Dyesonline Proprietary Properties and intends to vigorously defend Dyesonline Proprietary Properties, including seeking injunctive relief, damages, and legal costs.
To the maximum extent legally possible, User agrees that it will not directly or indirectly copy or reproduce all or any part of the Dyesonline Proprietary Properties, whether electronically, mechanically, or otherwise, in any form including, but not limited to, the copying of presentation style, content, or content organization, without the prior written permission from Dyesonline; provided, however, that the User may make copies of Web pages in its internal computer system as part of accessing our Web site and for its own internal use, but not make copies or otherwise distribute, publish, reproduce, or retransmit any information, or otherwise commercially BICNETloit any information, in transactions with third parties.
User acknowledges that Dyesonline and/or third-party content providers remain the owners of the information on this Web site, and that User does not acquire any of those ownership rights by printing or downloading any of the information or making use of the Service. In addition, other trademarks appearing through the use of the Service and information specifically related to certain companies may also be subject to the rights of other parties. User agrees to respect, and not in any way to violate, such third party rights (the "Other Proprietary Rights").
Member acknowledges that it will be providing or be making available information about Member as part of the Member Profile (as defined in the dyesonline policies and governed by the rules of our Privacy Statement). Member hereby grants us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right to exercise any rights you have in the Member Profile and otherwise to make use of the Member Profile (including publishing, disseminating, broadcasting, or selling such information), in any media now known or not currently known, subject, however, to the limitations set forth in our Privacy Statement. Member hereby specifically authorizes Dyesonline and its affiliates to use such information in the Member Profile and the Member Information (as defined below) as a part of the aggregated transaction information that Dyesonline publishes at its sole discretion on its Web site or in any other medium. We will not publish specific transaction information, except to the extent permitted in our Privacy Statement.
The User (including each Member) acknowledges and agrees that all other information in any way relating to or derived from the use of the Service (including the terms of Product Offers, Product Requests, Bids to Buy, Offers to Sell, and information relating to other Members ["Other Exchange Information"]) is, as between such User and Dyesonline, owned exclusively by Dyesonline as part of the Dyesonline Proprietary Properties and is subject to the limitations set forth in the preceding paragraphs and elsewhere in the Agreement. Without limiting any other provision in the Agreement, User agrees that it will not publish, disclose, or disseminate any information relating to a trade between Members, a Member Buy and/or Sell Arrangement, or other Members (including their performance rating information regarding trades, and financial and performance capacity and characteristics); provided, however, that to the extent legally required, a Member may disclose the obligations that it has assumed in connection with a Member Buy and/or Sell Arrangement and the financial results of its transactions, its ratings, and other information relating to it and to the transactions relating to Member Arrangements to which it is a party (collectively, "Member Information").
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| 4. Limitated Liability and Warranty |
USER AGREES THAT USE OF THE SERVICE IS ENTIRELY AT USER'S OWN RISK. THE SERVICE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND OR RESPONSIBILITY EITHER BICNETRESSED OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OR RESPONSIBLITILTY AS TO, OF, OR FOR
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TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR PARTICULAR PURPOSE, WHETHER RELATED TOTHE COVERED PRODUCTS , OR OTHERWISE; |
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INFORMATION, INFORMATIONAL CONTENT, OR COMPLETNESS OR INFORMATIONAL ACCURACY, WHETHER RELATING TO THE COVERED PRODUCTS OR OTHERWISE; |
| (c) |
THE QUALITY, SUITABILITY, ACCURACY, FUNCTIONALITY, OR OPERATION OF THE SERVICE; |
| (d) |
UNINTERRUPTED ACCESS; |
| (e) |
THE COVERED PRODUCTS OR ANY INFORMATION RELATING THERETO; OR |
| (f) |
THE ABILITY FOR A MEMBER TO PROVIDE OR DELIVER A PRODUCT OR SERVICE OR TO PAY A MEMBER FOR A PRODUCT OR SERVICE. |
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THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, IN ANY WAY RELATING TO OR ARISING OUT OF THE SERVICE OR THE ATTEMPTED USE THEREOF OR ANY TRANSACTIONS BETWEEN MEMBERS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE (WHETHER OF DYESONLINE OR OTHERWISE), OR UNDER ANY OTHER CAUSE OF ACTION. |
NEITHER DYESONLINE NOR ANY OF ITS AGENTS, AFFILIATES, OR CONTENT PROVIDERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR ACTUAL TRANSACTIONS OR INTENDED TRANSACTIONS ARISING OUT OF THE USE OF THE SERVICE OR INABILITY TO GAIN ACCESS TO OR USE THE SERVICE OR OUT OF ANY BREACH OF ANY OBLIGATION OR RESPONSIBILITY THAT ANY OF THEM MAY HAVE.
WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION CONTAINED HEREIN, MEMBER AGREES THAT IN NO EVENT SHALL DYESONLINE OR ITS OFFICERS, DIRECTORS, OWNERS, INDEPENDENT CONTRACTORS, EMPLOYEES, AGENTS, OR AFFILIATES BE LIABLE, AND EACH MEMBER EXCULPATES AND RELEASES SUCH PERSONS FROM ANY LIABILITY, DIRECTLY OR INDIRECTLY, TO MEMBER FOR ANY LOSS, DAMAGE, LIABILITY, OR BICNETENSE THAT MEMBER MAY SUFFER (OR ANY OTHER PERSON CLAIMING BY OR THROUGH MEMBER) BY REASON OF, ARISING OUT OF, OR RELATED TO, THE USE OF THE WEB SITE OR THE SERVICE, BY REASON OF ANY TRANSACTION WITH MEMBERS (INCLUDING WITHOUT LIMITATION ANY MEMBER BUY AND/OR SELL ARRANGEMENTS), THE COVERED PRODUCTS, AND ANY INFORMATION APPEARING ON OR THROUGH THE EXCHANGE, REGARDLESS OF WHETHER SUCH LOSS, DAMAGE, LIABILITY, OR BICNETENSE RESULTS DIRECTLY OR INDIRECTLY FROM DYESONLINE'S NEGLIGENCE.
NOTWITHSTANDING THE FOREGOING OR ANY OTHER LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT, IF A USER OR MEMBER BECOMES ENTITLED TO ANY RECOVERY, EACH USER AND MEMBER AGREES THAT ITS RECOVERY SHALL BE LIMITED TO THE AMOUNT OF ANY FEES OR PAYMENTS PAID TO DYESONLINE BY REASON OF SUCH USER'S OR MEMBER'S USE OF THE SERVICE,
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WITH RESPECT TO ANY GIVEN TRANSACTION(S) OR USE(S) (OR ATTEMPTED USE[S]) OF THE SERVICE, TO THE EXTENT THAT THE EVENT, ACTION, OR OMISSION GIVING RISE TO LIABILITY CAN BE FAIRLY ATTRIBUTED TO SUCH TRANSACTION(S) OR USE(S) (OR ATTEMPTED USE[S]), OR, IF LESS OR IF NO SUCH ATTRIBUTION CAN BE FAIRLY MADE; |
| (b) |
WITHIN SIX MONTHS PRECEDING THE EVENT OR ACTION GIVING RISE TO LIABILITY, OR $100, WHICH EVER AMOUNT IS LESS. |
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| USER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON THE SERVICE. |
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| 5. Indemnity |
Dyesonline provides communication information including email addresses within its content for private email communication between Members. Dyesonline does not monitor this communication and, as such, shall be indemnified and held harmless by each Member for any direct, indirect, incidental, special, or consequential damages arising out of use of communication information including, but not limited to, email communication with regard to buying or selling products or services or out of any breach of any warranty of any kind.
In addition, Member indemnifies Dyesonline and its officers, directors, owners, independent contractors, employees, agents, and affiliates for and from any Loss by reason of, in any way relating to, or arising out of
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Member's use of the Web site or the Service, any violation of any law, rule, or regulation arising by reason of such use; |
| (b) |
any claim or dispute which may arise from a breach of terms of the Agreement or from any dispute which may arise between Members with respect to the Covered Products (including without limitation any claim arising from or relating to transactions with respect to the purchase and sale of products); |
| (c) |
any information supplied by or through such Member or any transactions to which such Member is a party and any misuse of any information by such Member; |
| (d) |
Member's violation of the Agreement; and/or |
| (e) |
the Covered Products, the purchase and sale thereof, the delivery and transportation thereof, and any other action or matter relating to or affecting such Covered Products or the purchase and sale thereof (including, without limitation, the Member Buy/Sell Arrangements), the Loss suffered by or other harm to any person or property in any way relating to or caused in whole or in part by the Covered Product (including, without limitation, any personal injuries or death of any third person caused in whole or in part by the Covered Products, the use, transportation, delivery, storage, handling or release thereof). |
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| 6. Notices |
Dyesonline may give notice to Members by means of a general notice on the Service, or by electronic mail to Member's email address on record at Dyesonline, or by written communication sent by first class mail to a Member's address on record with Dyesonline. You may give notice to Dyesonline and such notice shall be deemed given when received by us at any time.
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| 7. Jurisdiction |
THE AGREEMENT SHALL BE CONSTRUED AND GOVERNED BY THE LAWS OF THE INDIA AND NOT BY THE APPLICATION OF CHOICE OF LAW PRINCIPLES, THE LAWS OF ANY OTHER STATE OR COUNTRY.
THE MEMBER AGREES THAT THE FEDERAL AND STATE COURTS LOCATED IN MUMBAI, SHALL HAVE THE EXCLUSIVE JURISDICTION OVER ANY ACTION BROUGHT TO ENFORCE THE RIGHTS AND OBLIGATIONS IN OR ARISING FROM THE AGREEMENT AND EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE JURISDICTION OF SUCH COURTS.
NOTWITHSTANDING THE ABOVE, DYESONLINE MAY SEEK AND OBTAIN EQUITABLE RELIEF AGAINST MEMBER FOR THE VIOLATION OF THE AGREEMENT AND EITHER PARTY MAY APPLY TO ANY COURT OF COMPETENT JURISDICTION, WHERE EVER SITUATED FOR ENFORCEMENT OF ANY JUDGEMENT ANY ENTRY OF WHATEVER ORDERS ARE NECESSARY FOR SUCH ENFORCEMENT.
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| 8. Hyperlinks |
The Hyperlinks of the articles, sections, and exhibits of the Agreement are inserted for convenience only, do not constitute a part of the Agreement and shall not affect in any way the meaning or interpretation of the Agreement.
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| 9. Severability |
If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable, or against public policy, the remainder of this Agreement shall remain in full force and effect.
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| 10. Ammendment and Assignment |
The Agreement, including any exhibits hereto and all incorporated provisions, constitutes the entire agreement among the parties and supercedes all prior agreements and understandings, whether written or oral, with respect to the subject matter of the Agreement.
The Agreement may not be modified or amended (except by Dyesonline with respect to its terms and conditions, as provided above and the Agreement, as so amended, shall apply to all uses of the Service by User from and after the date of such amendment is made) except in writing signed by the party against whom the amendment is to be enforced or by, in the case of amendments made by Dyesonline, the posting of the amendments (or the Agreement, as so amended) on its Web site.
User shall not be entitled to assign or transfer any of its rights hereunder or allow any person to obtain the benefits of such rights (including, without limitation, allowing any third party to obtain access to Service, whether through a change in control of User or otherwise) without Dyesonline 's prior written consent. A change of control as to a person other than an individual shall be deemed to have occurred if, as a result of a transaction or event, the persons beneficially owing the voting securities of such person do not, after such transaction or event, beneficially own more than 50% of the voting securities of such person. For the purposes of this foregoing sentence, the provisions of Rule 13d-3 as promulgated by the Securities Exchange Commission (and any successor rule) shall apply with respect to the determination of beneficial ownership.
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