Case: 1:10-cv-00931 Document #: 44 Filed: 04/26/11 Page 1 of 40 PageID #:338
`Case: 1:10-cv-00715 Document#: 171-1 Filed: 04/26/11 Page 2 of41 PageiD #:4777
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`UNITED STATES DISTRICT COURT
`NORTinrnNDISTRICTOFITLmOIS
`EASTERN DMSION
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`v.
`
`BCG PARTNERS, INC.
`
`Plaintiff,
`
`Defendant.
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`v.
`
`TRADEHELM, INC.
`
`Plaintiff,
`
`Defendant.
`
`Case No. 10 C 715
`(Consolidated with:
`10 c 716, 10 c 718,
`10 c 720, 10 c 721,
`10 c 726, 10 c 882,
`10 c 883, 10 c 884,
`10 c 885, 10 c 929)
`
`Judge Virginia M. Kendall
`
`Consolidated with:
`
`Case No. 10 C 931
`
`Judge Virginia M. Kendall
`
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`CONSENT JUDGMENT
`
`As a result of settlement of this action by virtue of a settlement agreement
`
`between the parties dated April 18, 2011 ("Settlement Agreement'') (attached as Exhibit 1
`
`hereto) which shall become effective upon entry of this Consent Judgment and upon
`
`consent of Plaintiff, Trading Technologies Intemational, Inc. ("TT") and Defendant,
`
`TradeHelm, Inc. (''TradeHehn"), judgment is hereby entered against TradeHelm upon
`
`IT's Complaint, and it is hereby ORDERED, ADJUDGED, and DECREED that:
`
`-1-
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`Page 1 of 40
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`TRADING TECH EXHIBIT 2078
`TD Ameritrade v. Trading Technologies
`CBM2014-00136
`
`

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`1.
`
`TI commenced this action for patent infringement against TradeHelm on
`
`February 10, 2010. This action alleges infringement of U.S. Patent Nos. 6,766,304
`
`("'304 patent"), 7,772,132 ('"132 patenf'), 7,212,999 ('"999 patenf'), and 7,533,056
`
`('"056 patenf'). Tbe complaint was subsequently amended to add claims of infringement
`
`of U.S. Patent Nos. 7,676,4II ('"411 patenf'), 7,693,768 ('"768 patenf'), 7,725,382
`
`('"382 patenf') and 7,813,996 ('"996 patenf'). TradeHelm has received and reviewed a
`
`copy of the Complaint and Amended Complaints filed by TI in this action.
`
`2.
`
`This Court has jurisdiction over the parties to this action and over the subject
`
`matter of the Complaint.
`
`3.
`
`TI is the sole and exclusive owner of the patents-in-suit asserted by TI, and has
`
`the right to sue upon, and recover damages for past infringement and enjoin future
`
`infringement of the patents-in-suit.
`
`4.
`
`All claims of the '304, '132, '41 I, '768, '382 and '996 patents are valid and
`
`enforceable.
`
`5.
`
`TradeHelm has infringed the '4II, '768, '382 and '996 patents under 35 U.S.C.
`
`Section 271 by making, using, selling, offering for sale, importing and/or otherwise
`
`distributing electronic trading software referred to as ACtrader (alk/a Professional
`
`Trader) and AMI (alk/a Strategy Architect). Documentation describing the current
`
`version of ACtrader (alk/a Professional Trader) and AMI (alk/a Strategy Architect) is
`
`included in Exhibit 2.
`
`6.
`
`Defendant TradeHelm, its officers, directors, partners, members, affiliates,
`
`subsidiaries, assigns, and successors-in-interest are hereby permanently enjoined (unless
`
`expressly permitted by TI during the terms of the '132, '304, '41 I, '768, '382 and '996
`
`-2-
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`Page 2 of 40
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`

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`patents from infringing the '132, '304, '411, '768, '382 and '996 patents, including,
`
`without limitation, by the making, using, selling, offering for sale, importing, and
`
`otherwise distributing in the United States the electronic trading software products
`
`referred to in paragraph 5 above including, without limitation, for use in electronically
`
`trading any item (e.g., futures, options, equities, fixed-income products, etc.).
`
`7.
`
`Pursuant to the Settlement Agreement, TradeHehn shall pay to TT an amount in
`
`settlement ofTT's claims for past damages arising from the claims of infringement of the
`
`patents-in-snit.
`
`8.
`
`The Settlement Agreement resolves all claims in this action. Accordingly, TT's
`
`claims of patent infringement of the '999 and '056 patents are hereby dismissed with
`
`prejudice.
`
`9.
`
`This Court shall retain jurisdiction over this case for purposes of enforcing the
`
`Consent Judgment and the Settlement Agreement between the parties pursuant to which
`
`the Consent Judgment is filed.
`
`10.
`
`The right to enforce this Consent Judgment shall transfer to any successor-in-
`
`interest to TT.
`
`11.
`
`Each party shall bear its own costs and attorneys' fees.
`
`[Signatures on FoOowing Page]
`
`-3-
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`

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`SO ORDERED
`
`Date:
`
`AGREED TO:
`
`./.J· tJ': I)'..._,..- "J.J'I • I
`Dated:t-1,# g....,-:..J , ~"I/ I i
`7
`(
`
`Dated: 4r',_'ll ~ ,1a ((
`
`Attorneys for Plaintiff
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`Bradford P. Lyerla (ID
`Jenner & Block LLP
`353 N. Clark Street
`Chicago, IL 60654-3456
`Tel.: (312) 923-2613
`Fax.: (312) 527-0484
`
`Attorneys for Defendant
`TRADEHEI.M, INC.
`
`Page 4 of 40
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`Exhibit 1
`
`to Ex. I (Consent Judgment)
`
`Page 5 of 40
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`

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`SEITLEMENT AGREEMENT
`
`TillS AGREEMENT (the "Agreement") made this 18th day of April20 11 ("Execution
`Date") is by and between Trading Technologies International, Inc. (''TI"'), a Delaware
`corporation and TTBD LLC, an TI!inois Limited Liability Company (''TTBD"), each with its
`principal place of business at 222 South Riverside Plaza, Suite 1100, Chicago, TI!inois,
`60606, and TradeHelm, Inc., a Delaware corporation with its principal place of business at
`527 S. Lewis Avenue, Suite 500, Tulsa, Oklahoma 74105 (''TradeHelm''). Each party herein
`also referred to as "Party" and collectively as "Parties."
`
`WHEREAS, TT owns U.S. Patents Nos. 6,766,304 ('"304patenf'), 6,772,132 ("'132
`patent''), 7,212,999 ("'999 patent''), 7,533,056 ("'056 patent''), 7,676,411 ('"411 patent''),
`7,693,768 ("'768 patent"), 7,725,382 ("'382 patent'') and 7,813,996 ('"996 patent")
`(collectively referred to as the "Patents-in-suit");
`
`WHEREAS, there is a civil action pending in the United States District Court for the
`Northern District oflllinois, Eastern Division, Civil Action No. 10 CV 931 (the
`"Lawsuit'') in which TT has charged TradeHelm with infringement of the patents-in-suit;
`
`WHEREAS, TradeHelm admits that it has infringed the '411, '768, '382 and '996
`patents;
`
`WHEREAS, TT and TradeHelm wish to settle all issues with respect to claims of
`infringement under terms which will include TT granting to TradeHelm a nonexclusive
`liceuse under TT's '056 patent for a royalty mte that the parties agree to as being
`discounted to the true value of the patented teclmology;
`
`WHEREAS, TT and TTBD are willing to grant the liceuse herein at a discounted royalty
`because, inter alia, TradeHelm is an early licensee of the TT Licensed Patents (defined
`below) and because of the specific restrictions contained herein;
`
`WHEREAS, TT and TTBD are willing to grant the license herein at a discounted royalty
`for administmtive convenience because the license is worldwide and requires payments
`of royalties for use of Licensed Products anywhere in the world as opposed to royalties
`based only on the usage of Licensed Products in countries in which there is patent
`protection;
`
`WHEREAS, TradeHelm agrees such terms are reasonable and is willing to accept such
`terms.
`
`NOW, THEREFORE, in considemtion of the mutoal covenants contained herein, TT,
`TTBD, and TradeHelm agree as follows:
`
`Page 6 of 40
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`

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`ARTICLE 1: DEFINfTIONS
`
`"Affiliate" means, with respect to any relevant Person at any particular time, any entity
`that, at that time: (i) controls; (ii) is controlled by; or (iii) is controlled by a Person that
`also controls such relevant Person, where "control" includes direct or indirect control,
`including any subsidiary, holding company or operating division of such Person from
`time to time. For avoidance of doubt, an entity shall be considered to be an Affiliate of
`such Person only so long as such control is in effect. Notwithstanding the foregoing,
`Affiliate shall not include any shareholder of a Party to this Agreement that owns less
`than 50% of the outstanding equity of the Party, nor any affiliate of such shareholder
`unless such an affiliate otherwise qualifies as an Affiliate.
`"Always Centered Trading Screen" means an electronic trading screen on which trades
`may be made to an Exchange that displays at least one indicator representing the best bid
`and/or best ask price relative to a range of price levels in which the best bid price, best
`ask price or last traded price is continuously displayed in the center of the displayed
`range of prices (i.e., the center cell or one off of the center cell if an even number of rows
`are displayed). To qualify as an Always Centered Trading Screen, there can never be a
`mode or condition in which continuous display of the best bid price, best ask price or last
`traded price in the center described above does not occur. For example, the continuous
`display of such type of price in the center can never be disabled in anyway (e.g., tmned
`offby user, tmned offby software, temporarily disabled based on a location of mouse
`pointer, etc.).
`
`"Applicable Trades" means all trades of at least one Base Unit of a Current Contract or a
`Subsequent Contract where the trade is the result of an order entered and/or modified
`using and/or sent to an exchange by a Licensed Product and twenty (20) percent of any
`trades of at least one Base Unit of a Current or Subsequent Contract where the trade is the
`result of an order that was not entered or modified using a Licensed Product but where
`the order could have been viewed and accessed with a Licensed Product at any time from
`the time the order was entered until the time the order was matched, filled or cancelled.
`Trades entered only in a simulated environment and not on an Exchange are not
`Applicable Trades. By way of example without limiting the foregoing, if an End User
`enters orders for a contract using a non-Licensed Product that results in trades, twenty
`(20) percent of such trades will be considered Applicable Trades if any End User had the
`capability of viewing and accessing the order with a Licensed Product (regardless of
`whether the order was in fact viewed or accessed by an End User with a Licensed
`Product).
`
`"Automatic Repositioning Ladder" means a Ladder in which when the relevant market
`information changes such that the at least one indicator no longer corresponds to any of
`the displayed range of price levels, the displayed range of price levels is automatically
`(outside of the control of the user) repositioned to ensure that the at least one indicator
`remains displayed on the screen. In an Automatic Repositioning Ladder, the at least one
`indicator can never be permitted to move off the screen. The automatic repositioning
`must result in all of the price levels of the displayed range of price levels instantly
`changing positions. To qualify as an Automatic Repositioning Ladder, there can never be
`
`2
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`a mode or condition in which automatic repositioning described above does not occur.
`For example, the automatic repositioning can never be disabled in anyway (e.g., turned
`off by user, turned off by software, temporarily disabled based on a location of mouse
`pointer, etc.).
`
`"Base Unif' means (i) for futures and options on futures, a contract or lot; (ii) for fixed
`income cash products, a million dollar increment in such products; (iii) for currency cash
`products, a million dollar base currency value increment; (iv) for equities and ETFs, a
`share; (v) for equity/ETF options, a contract for 100 shares; and (vi) for OTC Energy
`Contracts/Energy Forward Contracts (and options thereon), a lot.
`
`"Broker'' means a Futures Commissions Merchant ("FCM''), a broker/dealer and/or an
`equivalent Person.
`
`"Current Affiliates" means Affiliates of a Party as of the Execution Date that have
`undertaken to be bound by this Agreement pursuant to Section 8.2.
`
`"Current Contracts" means futures, options on futures, currency cash products, fixed(cid:173)
`income cash products, options on stocks and options on stock indexes that are in
`existence and actively traded electronically on an Exchange as of the Execution Date and
`all stocks and exchange traded stock funds ("ETFs'').
`
`"Drifting Ladder" means a Ladder in which immediately after each and every change of
`market information that causes the at least one indicator to move relative to the displayed
`range of prices, the at least one indicator and the displayed range of price levels scrolls or
`drifts back towards the center at the rate of at least 9 pixels per second. To qualify as a
`Drifting Ladder, there can never be a mode or condition in which scrolling/drifting
`immediately after each and every change of market information described above does not
`occur. For example, the drifting/scrolling can never be disabled in any way (e.g., turned
`off by user, turned off by software, temporarily disabled based on a location of mouse
`pointer, etc.).
`
`"Effective Date" means the date upon which the Court enters the Consent Judgment
`attached as Exhibit A.
`
`"Electronic Trading Software" means software that permits an End User to electronically
`send orders to buy or sell to an electronic exchange and/or that sends orders on behalf of
`End Users to an electronic exchange.
`
`"End User'' means any individual with direct or indirect access to Licensed Products or a
`TT product on any computing device, including, but not limited to, a computer,
`workstation, or server.
`
`"Exchange" means (i) any exchange, market or similar entity for trading futures, options
`on futures, currency cash products, stocks, or options that is designated as such by a
`recognized governmental regulatory agency; (ii) an inter-dealer brokerage that acts as an
`intermediary between dealers to trade fixed income cash (bond) products; and/or (iii)
`
`3
`
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`with respect to currency product markets, any bank or other entity that makes markets for
`currency products.
`
`"Have Made" or ''Having Made" means having any product created with the assistance of
`third parties to a Party's specification and at a Party's direction and control. In no event
`shall a Have Made right granted to a Party be interpreted to include a right for that Party
`or any other Person to grant a sublicense to any third parties to utilize any licensed
`patents for any purpose other than creating or modifYing the licensed products on that
`Party's behalf as set forth herein.
`
`"Ladder'' means an electronic trading screen on which trades may be made to an
`Exchange that displays at least one indicator representing the best bid and/or best ask
`price relative to a range of price levels (any level of which the at least one indicator may
`be displayed against) such that the at least one indicator moves relative to the range of
`price levels when the relevant market information changes.
`
`'TI Licensed Patents" means the '056 patent and any reissue or reexamination thereof.
`TT Licensed Patents shall also include any continuation and/or divisional thereof and all
`foreign counterpart patents and counterpart applications thereto to the extent such a
`patent claims the same subject matter claimed in the '056 patent. TT Licensed Patents
`shall also include any patent owned or exclusively licensed (with the right to sublicense)
`by TT and/or any TT Affiliate during the Term of this Agreement which covers
`technology necessary to implement an Always Centered Trading Screen.
`Notwithstanding anything herein to the contrary, TT Licensed Patents shall not include
`the '999 patent and/or U.S. Patent No. 7,412,416 as such continuation patents do not
`claim the same subject matter claimed in the '056 patent and do not cover technology
`necessary to implement an Always Centered Trading Screen.
`
`"Licensed Product" means an Always Centered Trading Screen made and/or Have Made
`by LICENSEE and used, sold, offered for sale, imported or otherwise distributed by or
`for LICENSEE that is covered by one or more claims of the TT Licensed Patents. For
`clarity, a Licensed Product includes an Always Centered Trading Screen performing a
`method covered by one or more claims of the TT Licensed Patents. Licensed Products
`are limited to the extent such software can be used to electronically trade Current and
`Subsequent Contracts and a product is only a Licensed Product if it connects to an
`Exchange through LICENSEE technology and is not a Licensed Product if it is modified
`to connect to an Exchange in some other manner. Licensed Products shall not include
`any product that is not an Always Centered Trading Screen (e.g., Licensed Products shall
`not include a Ladder).
`
`"LICENSEE" means TradeHehn and any of its Affiliates that have undertaken to be
`bound by this Agreement pursuant to Section 8.2.
`
`"LICENSEE Patents" means all patents worldwide owned or exclusively licensed (with
`the right to sublicense) by LICENSEE and issued as of the Effective Date, which are
`
`4
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`limited to U.S. Patent Nos. 7,702,571 and 7,624,066, and Australian Patent Nos.
`2006201985 and 2009200963. LICENSEE Patents shall also include any reissues,
`reexaminations, continuations, divisionals and foreign counterparts to any of the above(cid:173)
`identified patents.
`
`"LICENSEE Software" means software made and/or Have Made by LICENSEE and
`used, sold, offered for sale, imported or otherwise distributed by or for LICENSEE for
`electronic trading.
`
`"Person" means (i) any individual, corporation, partnership, limited partnership, limited
`liability company, joint venture, trust, foundation, or other business entity, (ii) any non(cid:173)
`profit trust, enterprise, or institution, or (iii) any governmental subdivision, agency, or
`entity.
`
`"Subsequent Contracts" means futures, options on futures, currency cash products, fixed
`income cash products, options on stocks, and options on stock indexes that become
`actively traded electronically on an Exchange that are substantially similar to Current
`Contracts. For example and without in any way limiting the foregoing, a contract based
`upon the outcome of a presidential election would not be a Subsequent Contract
`
`"Term" means the period commencing on the Execution Date and ending on the last to
`expire of the IT Licensed Patents or an earlier termiuation date as allowed herein,
`whichever occurs first.
`
`"Transition Period" means the 90-day period immediately following the Execution Date
`of this Agreement.
`
`ARTICLE 2: LICENSE GRANTS
`
`Subject to the receipt of any payments required by Article 4, IT and TTBD
`2.1.
`hereby grant to LICENSEE a worldwide, non-exclusive, non-transferable (except to a
`permitted successor in interest) license (without the right to sublicense) under the IT
`Licensed Patents, during the Term of this Agreement, to make, Have Made, use, sell,
`offer for sale, import or otherwise distribute any Licensed Products. The foregoing
`license grant is from TTBD with respect to usage of Licensed Products to trade securities.
`Notwithstanding the foregoing, IT and TTBD covenant not to sue LICENSEE's
`customers and/or LICENSEE's End Users for patent infringement (including inducement
`and contributory infringement) of a Licensed Patent for their use of Licensed Products
`that are obtained from, or given access by, LICENSEE and/or LICENSEE's Affiliates
`both prior to and during the Term of this Agreement.
`
`2.2. Upon expiration of the Transition Period, LICENSEE shall discontinue and
`disable its existing Ladder products and replace them with an Always Centered Trading
`Screen. Following expiration of the Transition Period and during the term of the '132,
`'304, '411, '768, '382 and '996 patents, LICENSEE agrees not to make, Have Made, use,
`sell, offer for sale, import or otherwise distribute any products covered by any claims of
`the '132, '304, '411, '768, '996 and '999 patents. LICENSEE does not contest that (1) an
`Automatic Repositioning Ladder or a Drifting Ladder with single action order entry at
`
`5
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`locations corresponding to a price axis ("Auto Repositioning Single Action Ladder" or
`"Drifting Single Action Ladder'') is covered by at least the independent claims of the
`'411 and '768 patents, (2) that an Auto Repositioning Single Action Ladder or a Drifting
`Single Action Ladder that also petmits multiple single action orders at locations
`corresponding to the price axis without requiring the quantity to be reset is also covered
`by at least the independent claims of the '996 patent, and (3) that an Auto Repositioning
`Single Action Ladder or a Drifting Single Action Ladder that also permits single action
`cancellation of working orders relative to the price axis is also covered by at least the
`independent claims of the '382 patent
`
`2.3. As partial consideration for the licenses granted by TI and 1TBD to LICENSEE,
`LICENSEE hereby grants to TI and TI's Affiliates a worldwide, non-exclusive, non(cid:173)
`transferable license (without the right to sublicense) under LICENSEE Patents, during the
`Term of this Agreement to make, Have Made, use, sell, offer to sell, import and
`otherwise distribute any products and practice any methods covered by the LICENSEE
`Patents. Notwithstanding the foregoing, LICENSEE covenants not to sue TI and/or TI's
`Affiliates' customers and/or End Users for patent infringement for their use of products
`that practice at least one claim under LICENSEE Patents that are obtained from, or given
`access by, TI and/or TI's Affiliates both prior to and during the Term of this Agreement
`
`2.4. Except as provided for in Sections 2.1 and 2.3, nothing in this Agreement shall be
`construed as providing any license, either express or implied, or a covenant not to sue
`under any intellectual property not specifically named herein.
`
`ARTICLE3: PAYMENT AND RELEASES
`
`3.1. Within five (5) business days of the Effective Date, TradeHelm shall pay to TI
`past damages for patent infringement of Seventeen Thousand Dollars ($1 7,000.00) ("Past
`Damages''). This payment represents a discounted estimation ofTradeHelm's past
`damages for past infringement by virtue of TradeHelm' s previous making, using, selling,
`offering for sale, importing and/or otherwise distributing of LICENSEE Software. The
`payment amount is based on TradeHelm's best estimates of volumes using infringing
`software made during the period from April 1, 201 0 to the end of the Transition Period.
`These rates are being applied to all estimated trades resulting from orders entered and/or
`modified in any Ladder in LICENSEE Software and to twenty percent (20%) of all
`estimated trades resulting from orders entered otherwise but that were accessible by a
`Ladder in LICENSEE Software during the lifecycle of the order. The Past Damages
`amount shall be non-refundable. Upon receipt of the above payment for Past Damages
`by TI, all Past Damages due and owing by TradeHelm shall be fully paid up.
`
`3.2. TradeHelm shall make four (4) annual payments to TI of Forty-Eight Thousand
`Nine Hundred and Eighty-Five dollars ($48,985.00) for the license granted in Section
`2.l("Royalty''). The first payment shall be made within five (S) business days of the
`Effective Date. Each remaining payment shall be made on April! of each successive
`year. This Royalty represents a discounted estimation of what royalties TradeHelm
`would incur during the Term of this Agreement for the license granted in Section 2.1.
`
`6
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`The Royalty is based on the Parties' prediction of the nwnber of Applicable Trades
`during the Term. Each payment shall be non-refundable. Upon receipt of all four of the
`above Royalty payments by TT, TradeHelm's license hereunder shall be fully paid up for
`the entire length of the Term.
`
`The Parties agree that the past damages and royalties set forth in Sections 3.1 and
`3.3.
`3.2 above are discounts from the reasonable value of a license under the patented
`innovations. For example, LICENSEE acknowledges that (i) many of the patented
`innovations provide an advantage to Exchanges, FCMs and electronic traders such that
`the innovations increase the profitability of each of these entities and (ii) for an
`Exchange, FCM, and many traders that advantage is greater than the royalties set forth
`above, but rather would amount to a portion of the entity's profits which could be larger
`than such royalties. The Parties also agree that the past damages and royalties set forth in
`Sections 3.1 and 3.2 are discounted to reflect that the license granted herein is worldwide
`and requires payment of royalties for making, use and distribution of Licensed Products
`anywhere in the world as opposed to royalties based ouly on the making, usage and
`distribution of Licensed Products in countries in which there is a Licensed Patent. The
`Parties also agree that the royalties set forth in Section 3.2.are significantly discounted
`due to the restrictions on the type of permitted Licensed Products.
`
`In exchange for the payment required by Sections 3.1 and 3.2, TT hereby releases,
`3.4.
`acquits and forever discharges TradeHelm and its directors, officers, members,
`employees, agents, attorneys, Current Affiliates and all persons acting by, through, under,
`or in concert with them of and from any and all claims, counterclaims (including
`compulsory counterclaims that could have been brought in the Lawsnit) or liability for
`infringement (including inducement and contributory infringement), known or unknown,
`of any of the Patents-in-snit by the manufacture, importation, use, sale, offer for sale,
`lease, license, offer for license or other disposition or distribution of LICENSEE
`Software prior to expiration of the Transition Period. TT further releases, acqnits and
`forever discharges TradeHelm's customers and/or End Users from any and all claims,
`counterclaims or liability for infringement (including inducement and contributory
`infringement), known or unknown, of any of the Patents-in-snit by the use, sale, offer for
`sale, importation or other disposition or distribution of LICENSEE Software obtained
`from, or given access by, TradeHelm prior to expiration of Transition Period.
`
`3.5. LICENSEE hereby releases, acquits and forever discharges TT and its Current
`Affiliates, directors, officers, members, agents, attorneys, employees and all persons
`acting by, through, under, or in concert with them of and from any and all claims,
`counterclaims (including compulsory counterclaims that could have been brought in the
`Lawsnit) or liability, known or unknown, (i) relating to the Patents-in-snit and/or the
`Lawsnit and arising prior to the Execution Date and (ii) for infringement (including
`inducement and contributory infringement) of any LICENSEE Patents by the
`manufacture, importation, use, sale, offer for sale, lease, license, offer for license or other
`disposition or distribution of any products prior to the Execution Date.
`
`3.6. The payments due to TT pursuant to Sections 3.1 and 3.2 shall be paid by wire
`transfer to the following account:
`
`7
`
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`
`ARTICLE 4: PATENT MARKING
`
`Promptly following the Effective Date and throughout the Term, LICENSEE shall
`4.1.
`mark its Licensed Products with the following notation in a manner to be approved by
`TT, which approval shall not be unreasonably withheld (e.g., on a splash screen and/or an
`about box): "Licensed under Trading Techoologies International, Inc.'s U.S. Patent No.
`7,533,056".
`
`From the Effective Date and throughout the term of this Agreement, LICENSEE
`4.2
`shall mark Licensed Products as instructed by TT with the following notion in a manner
`to be approved by TT, which approval shall not be unreasonably withheld (e.g., on a
`splash screen and/or about box): "Licensed under Trading Techoologies International,
`Inc.'s U.S. Patent Nos. [INSERT APPLICABLE PATENT NUMBERS PER TT'S
`INSTRUCTIONS]."
`
`LICENSEE agrees that TT, from time to time, can amend the form of the required
`4.3.
`notice set forth in Section 4.1 and/or of future notices pursuant to Section 4.2 to require
`LICENSEE to mark other TT Licensed Patents than the patents identified in the current
`instructions or to remove patents identified in the current instructions by providing
`TradeHeho with written notice of the specific patent(s) to be marked and the type of
`product( s) on which such patent( s) should be marked, provided, however, that such
`revised notices may only include references to patents that contain at least one claim that
`cover a feature in the product identified. Any such marking shall be done in a reasonable
`manner to be approved by TT, which approval shall not be unreasonably withheld (e.g.,
`on a splash screen and/or an about box) and shall state ''Licensed under Trading
`Techoologies International, Inc.'s [the relevant patent(s)].''
`
`4.4. TT shall indemnify, defend, and hold harmless LICENSEE and its directors,
`officers, members, employees ("Indemnified Entities") from and against any and all
`liabilities, obligations, losses, penalties, actions, suits, claims, damages, and reasonable
`actual out-of-pocket expenses (including reasonable attorneys' fees) that arise out of a
`claim made or action threatened against LICENSEE alleging LICENSEE's false marking
`ofTT Licensed Patents based on LICENSEE's compliance with this Article 4, provided
`that LICENSEE:
`
`8
`
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`
`4.4.1. notifies IT in writing as soon as reasonably practicable after becoming
`aware of any claim or threatened action;
`
`4.4.2. notifies IT in writing as soon as reasonably practicable regarding all
`official and unofficial contacts regarding such claim or action;
`
`4.4.3. affords reasonable assistance to IT (but only at the request of IT) in the
`defense of such claim; and
`
`4.4.4. allows IT full control of the defense of the claim (including any
`compromise related to the claim) on LICENSEE's behalf; provided that IT will not
`without LICENSEE's prior written approval, which approval will not be unreasonably
`withheld or delayed, enter into any settlement or compromise, or agree to any judgment
`that requires an admission from LICENSEE or any monetary payment by LICENSEE.
`
`4.5. Notwithstanding anything herein to the contrary, IT shall have no liability for and
`no obligation to defend any LICENSEE or any Indemnified Entity against, any claim of
`false marking to the extent such claim arises from LICENSEE's failure to comply with
`IT's instructions regarding marking pursuant to Sections 4.1-4.3.
`
`4.6. The remedies set forth in Section 4.4 shall be LICENSEE's sole and exclusive
`remedy and IT's sole and exclusive liability in the event of any false marking claim.
`
`In the event TradeHelm has a good faith b