Case: 1:10-cv-00882 Document m 55 F~ed: 02/04/14 Page 1 of 47 PageiD #:457
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`a£[
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`Plaintiff,
`
`v.
`
`STELLAR TRADING SYSTEMS, LID., AND
`STELLAR TRADING SYS1EMS, INC.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Case No. I 0 C 882
`(Consolidated with:
`10 c 715, 10 c 716,
`10 c 718, 10 c 720,
`10 c 721, 10 c 726,
`10 c 883,10 c 884,
`10 c 885, 10 c 929,
`10 c 931)
`
`Judge Virginia M. Kendall
`
`CONSENT JUDGMENT
`
`As a result of settlement of this action by virtue of a settlement agreement
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`between the parties dated December 7, 2012 ("Settlement Agreement'') (attached as
`
`Exhibit 1 hereto) and upon consent of Plaintiff, Tmding Technologies International, Inc.
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`("TT'') and Defendants, Stellar Tmding Systems, Ltd. and Stellar Trading Systems, Inc.
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`(collectively "Stellar"), judgment is hereby entered against Stellar upon TT's Complaint,
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`and it is hereby ORDERED, ADJUDGED, and DECREED that:
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`1.
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`1T commenced this action for patent infringement against Stellar on February I 0,
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`2010. This action alleges infringement of U.S. Patent Nos. 6,766,304 ('"304 patent"),
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`6,772,132 ('"132 patent"), 7,212,999 ('"999 patent''), 7,533,056 ('"056 patent"),
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`7,587,357 ("'357 patent"), and 7,613,651
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`("'651 patent"). The complaint was
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`subsequently amended to add claims of infringement of U.S. Patent Nos. 7,676,411
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`('"411 patent"), 7,693,768 ("'768 patenf'), 7,725,382 ('"382 patent"), 7,813,996 ('"996
`
`TTX03359134
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`TRADING TECH EXHIBIT 2082
`TD Ameritrade v. Trading Technologies
`CBM2014-00136
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`Page 1 of 58
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`patent"), 7,904,374 ("'374 patent"), and 7,930,240 ('"240 patenf'). Stellar has received
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`and reviewed a copy of the Complaint and Amended Complaints filed by IT in this
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`action.
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`2.
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`The claims relating to all patents-in-suit other than the '411, '768 and '374 patents
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`were resolved in a Consent Judgment entered by this Court on January 24, 2013. At the
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`time, there was an appeal pending of findings by this Court of invalidity of the asserted
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`claims of the '411, '768 and '374 patents. On August 30, 2013, the U.S. Court of Appeals
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`for the Federal Circuit reversed this Court's findings of invalidity with respect to the
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`'411, '768, and '374 patents and remanded for further proceedings.
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`3.
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`This Court has jurisdiction over the parties to this action and over the subject
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`matter of the Complaint with respect to the '411, '768, and '374 patents.
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`4.
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`IT is the sole and exclusive owner of the patents-in-suit asserted by IT, and has
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`the right to sue upon, and recover damages for past infringement and enjoin future
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`infringement of the patents-in-suit.
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`5.
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`6.
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`All claims of the '411, '768, and '374 patents are valid and enforceable.
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`Stellar has infringed the '411, '768 and '374 patents Wlder 35 U.S.C. Section 271
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`by making, using, selling, offering for sale, importing and/or otherwise distributing
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`electronic trading software referred to as the Stellar front end software. Documentation
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`describing the Stellar front end software is included in Exhibit 2.
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`7.
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`Defendant Stellar,
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`its officers, directors, partners, members, affiliates,
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`subsidiaries, assigns, and successors-in-interest are hereby permanently enjoined (unless
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`expressly permitted by TI during the tenns of the '411, '768 and '374 patents) from
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`infringing the '411, '768 and '374 patents respectively, including, without limitation, by
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`TTX03359135
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`the making, using, selling, offering for sale, importing, and otherwise distributing in the
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`United States the electronic trading software products referred to in paragraph 6 above
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`including, without limitation, for use in electronically trading any item (e.g., futures,
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`options, equities, fixed-income products, etc.).
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`8.
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`The Settlement Agreement resolves all claims currently before this Court in this
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`action.
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`9.
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`This Court shall retain jurisdiction over this case for purposes of enforcing the
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`Consent Judgment and the Settlement Agreement between the parties pursuant to which
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`the Consent Judgment is filed.
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`10.
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`The right to enforce this Consent Judgment shall transfer to any successor-in-
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`interest to TT.
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`11.
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`Each party shall bear its own costs and attorneys' fees.
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`{Signatures on Following Page]
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`TTX03359136
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`AGREED TO:
`
`Dated:-::!?(V\. '2q, '2.-o \4
`'
`
`eif . Sigmond, Jr. (ID No. 6204980)
`Matthew J. Sampson (ID No. 6207606)
`McDonnell Bochnen Hulbert & Berghoff LLP
`300 South Wacker Drive
`Chicago, IL 60606
`Tel.: (312) 913-0001
`Fax: (312) 913~0002
`
`Attorneys for Plaintiff
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC.
`
`~~ RalpH J. Gabric (ID No. 6198485)
`
`Marc V. Richards (IDNo. 6216747)
`Mircea A. Tipescu (ID No. 6276053
`Brinks Hofer Gilson & Lione
`J\TBC Tower- Suite 3600
`455 N. Cityfront Plaza Drive
`Clrlcago,IL 60611-5599
`Tel.: (312) 321-4200
`Fax.: (312) 321-4299
`
`Attorneys for Defendants
`Stellar Trading Systems, Ltd. and
`Stellar Trading Systems, Inc.
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`TTX03359137
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`TTX03359138
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`Page 5 of 58
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`AMENDEDSETTLEMENTAGREEMENT
`
`TinS AGREEMENT {the "Amended Agreementj made this 7th day of December, 2012
`{"Execution Date") is by and between Treding Technologies International. Inc. (''IT'), a
`Delaware corporation with its principal place of business at 222 South Riverside Plaza, Suite
`1100, Chicago, lllinois, 60606, and Stellar Trading Systems Limited and Leadenhall
`Electr<mic Trading Software Limited (trading as Stellar Trading Systems), each an English
`limited company with its registered office at 24 Comhill, London EC3V 3ND, United
`Kingdom and Stellar Trading Systems, Inc. a Delaware corporation with its principal place of
`business at 101 N. Wacker Drive, Chicago. nlinois 60606 (collectively "Stellar). Each party
`herein also referred to as "Party" and collectively as "Parties."
`
`WHEREAS, TI owns U.S. Patents Nos. 6,766,304 ("'304 patent"), 6,772,132 ('"132
`patent}, 7,587,357 ("'357 patent"), 7,613,651 ("'651 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"), 7,813,996 ('"996 patent"), 7,904,374 ( ... 374 patent") and
`7,930,240 ('"240 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 882, which was
`consolidated with Civil Action No. I 0 CV 715 (the "Lawsuit") in which TT has charged
`Stellar with infringement of the Patents-in-suit;
`
`WHEREAS, there is an appeal pending in the United States Court of Appeals for the
`Federal Circuit ("Federal Circuit") from the Lawsuit (Case No. 2012-1583) relating to
`findings of invalidity of the '41 1, '768, and '374 patents ("the Appeal");
`
`WHEREAS, TT and Stellar wish to settle all issues with respect to claims of
`infringement of the Patents-in~suit still pending in the Lawsuit and wish to settle claims
`of infringement with respect to the '41 I, '768 and '374 patents de~nding on the outcome
`of the Appeal, which will continue;
`
`WHEREAS. TT and Stellar wish for this Amended Agreement to supersede and replace
`the settlement agreement signed by TI and Stellar dated November 16,2012.
`
`NOW, THEREFORE, in consideration of the mutual covenants contained herein, TI and
`Stellar agree as follows:
`
`----------------------------------------~TT~X~03359139
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`......
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`ARTICLE l: DEFINillONS
`
`"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 subsidiiU)', holding company or operating division of such Person from
`time to time. For avoidanc:e of doubt, an entity shall be considered to be an Affiliate of
`such Person only so long as such control is in effect.
`"Always Centered Trading Screen" means an electronic trading screen on which trades
`may be made to an Exchaoge 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., turned
`off by user, turned off by software, temporarily disabled based on a loeation of mouse
`pointer, etc.).
`
`"Automatic Repositioning Ladder" means a Ladder in which when the relevant market
`information changes such that the at least one indica10r no longer comsponds to any of
`the clisplayed range of price levels, the displayed range of price levels is autoJDBtically
`(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
`a mode or condition in which automatic repositioning described above does not occur.
`For example, the automatic repositioning can nev.er be disabled in anyway (e.g., turned
`off by user, turned off by software, temporarily disabled based on a location of mouse
`pointer, etc.).
`
`"Broker" means a Futures Commissions Merchant ("FCM"), a broker/dealer and/or an
`equivalent Person.
`
`"Current Affiliates" means Affiliates of a Party as ofthe 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 whkh immediately after each and every change of
`market information that causes the at least one indicalor to move relative to the displayed
`range of prices, the at least one indicator and the displayed range of price levels scrolls or
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`2
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`TTX03359140
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`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 scrollingtdrifting
`immediately after each and every change of market infonnation described above does not
`occur. For example, the driftinglscrolling 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 Cowt 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 Permitted 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)
`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 Permitted 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. For clarity, the indicator is
`merely an indication of what the best bid or best ask price is at a particular time and does
`not need to have the same visual appearance from moment to moment (e.g., if the
`indicator is a numeral also indicating the current amount of quantity available at the best
`bid or ask price, the numeral may be dynamically changing from moment to moment).
`
`'TI Patents" means the '056 patent, the '999 patent and U.S. Patent No. 7,680, 724 ("the
`'724 patent'') and any reissue or reexamination thereof. TT Patents shall also include any
`U.S. continuation and/or divisional thereof to the extent such a patent claims subject
`matter necessary to implement a trading screen that displays bids and asks relative to a
`price axis and that (a) permits order entry with a default quantity at locations
`
`3
`
`{"!-,.
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`TTX03359141
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`•
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`corresponding to the price axis or (b) permits order indicators to be moved from one
`location to another location corresponding to a level of the price axis. TT Patents shall
`also mclude any U.S. patent owned or ex.clusively 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 a Permitted Product. Notwithstanding anything
`herein to the contrary, TT Patents shall not include (by way of an example) U.S. Patent
`No. 7,412,416 as this continuation patent does not cover technology necessary to
`implement a trading screen that displays bids and asks relative to a price axis and that (a)
`pennits order entry with a default quantity at locations corresponding to the price axis or
`(b) permits order indicators to be moved from one location to another location
`corresponding to a level of the price axis.
`
`"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.
`
`"Permitted Product" means an Always Centered Trading Screen made andlor Have Made
`by STELLAR and used, sold, offered for sale, imported or otherwise distributed by or for
`STELLAR in the United States that is covered by one or more claims of the IT Patents.
`For clarity, a Permitted Product includes an Always Centered Trading Screen performing
`a method covered by one or more claims of the IT Patents. Permitted Products are
`limited to the extent such software can be used to electronically trade Current and
`Subsequent Contracts. A product is only a Permitted Product if it connects to an
`Exchange using STELLAR Software with the STELLAR front end, and is not a
`Permitted Product if it only uses the STELLAR front end and no other STELLAR
`Software to connect to an Exchange. This does not restrict STELLAR's ability to embed
`connectivity to exchanges that has been developed by third parties. Pennitted Products
`shall not include any product that is not an Always Centered Trading Screen (e.g.,
`Permitted Products shall not include a Ladder).
`
`wSTELLAR" means Stellar and any of its Affiliates.
`
`"STELLAR Patents" means all U.S. patents that are owned or exclusively licensed (with
`the right to sublicense) by STELLAR and that (i) are issued as of the Effective Date
`("Issued STELLAR Patents") and/or (ii) may issue in the future based on any patent
`application filed as of the Effective Date. STELLAR Patents shall also include any U.S.
`continuation, divisional, reissue and/or reexamination of any Issued STELLAR Patent.
`
`"STELLAR Software~ means software made and/or Have Made by STELLAR and used,
`sold, offered for sale, imported or otherwise distributed by or for STELLAR in the United
`States for electronic trading.
`
`"Subsequent Contrac~" 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
`
`4
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`TTX03359142
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`•
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`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
`
`"Tenn" means the period commencing on the Effective Date and ending on the last to
`expire of the TI Patents or an earlier termination date as allowed herein. whichever
`occurs fll'St
`
`ARTICLE 2: COVENANT NOT TO SUE
`
`Subject to the receipt of any payments required by Article 3, IT hereby agrees
`2.1.
`and covenants not to sue or assert any claim, right, demand, lawsuit. or action against
`STELLAR and its directors, officers, members, employees, agents, attorneys, and Current
`Affiliates for patent infringement (including inducement and contributory infringement)
`of any ofthe .. TT Patents" (as defined above) during the Term of this Agreement for
`STELLAR making, Having Made, using, selling. offering for sale, importing or
`otherwise distributing in the United States any Permitted Products. The foregoing
`covenant not to sue is non-exclusive, non-transferable (except to a permitted successor in
`interest) and. without the right to sublicense. Notwithstanding the foregoing, TT
`covenants not to sue STELLAR's customers and/or S1ELLAR's End Users for patent
`infringement (including inducement and contributory infringement) of any of the 1T
`Patents for their use of Permitted Products that are obtained from. or given access by.
`STELLAR both prior to and during the Term of this Agreement. IT is making the
`covenant not to sue of this Section 2.1 despite the fact that a Permitted Product may be
`covered by one or more claims of the TI Patents. The covenant not to sue of this Section
`2.1 does not apply to any products that do not qualify as a Permitted Product.
`
`STELLAR shall discontinue and disable both its Stellar front end software
`2.2.
`(original release) products and Stellar front end software (Nov. 2010 release) products
`sold or offered for sale in the United States and replace them with an Always Centered
`Trading Screen during a Transition Period, which is defined as 60 days from the
`Execution Date of this Agreement. Beginning on the expiration of the Tl'fUlsition Period
`and during the terms of the '132, '304, '411, '357, '651, '768, '382, 374 and '996 patents,
`STELLAR agrees not to make, Have Made, use, sell, offer for sale, import or otherwise
`distribute in the United States any products covered by any claims of the' 132, '304,
`'411, '357, '651, '768, '382, '374 and '996 patents, respectively, that have not been
`found to be invalid or unenforceable in a final non-appealable judgment. This restriction
`applies to any demonstrations, including but not limited to working demonstrations
`connected to a simulator, animations, and canned or recorded footage of software. As
`partial consideration for the covenant not to sue granted by TT to STELLAR. STELLAR
`does not contest that (i) an Automatic Repositioning Ladder or a Drifting Ladder with
`single action order entry at 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. '768 and '374 patents, (ii) that an Auto Repositioning
`Single Action Ladder or a Drifting Single Action Ladder that also permits multiple single
`action orders at locations corresponding to the price axis without requiring the quantity to
`
`5
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`.. TTX03359143
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`be reset is also covered by at least the independent claims of the '996 patent, and (ill) that
`an Auto Repositioning Single Action Ladder or a Drifting Single Action Ladder that also
`permits single action canceUation 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 covenant not to sue granted by TI to STELLAR,
`STELLAR hereby grants to TT and Tf's Affiliates a non-exclusive, non-transferable
`license (without the right to sublicense) under STELLAR Patents during the Term of' this
`Agreement to make, Have Made, use, sell, offer to sell, import and otherwise distribute in
`the United States any products and practice in the United States any methods covered by
`the STELLAR Patents. Notwithstanding the foregoing, STELLAR covenants not to sue
`TI and/or IT's Affiliates' customers and/or End Users for patent infringement for their
`use of products that practice at least one claim under STELLAR Patents that are obtained
`from, or given access by, TI and/or Tf's Affiliates both prior to and during the Term of
`this Agreement.
`
`2.4. Except as provided for in Section 2.3, nothing in this agreement shall be
`construed as providing any license, either express or implied, under any intellectual
`property. Except as provided for in Sections 2.1, 6.2.1, and 6.2.2, nothing in this
`Agreement shall be construed as providing any covenant not to sue under any intellectual
`property not specifically nained herein. By way of example, TI grants no license to
`STELLAR under any non·U .S. patents, and STELLAR grants no license to TI under any
`non-U.S. patents.
`
`ARTICLE 3: PAYMENT AND RELEASES
`
`3.!. Within seven (7) business days of the Effective Date, STELLAR shall make a
`one-time payment to lT of one hundred ten thousand dollars ($110,000). This payment
`represents a discounted estimation of STELLAR's past damages for past infringement by
`virtue of STELLAR's previous making, using, selling, offering for sale, importing and/or
`otherwise distributing of STELLAR Software in the United States. The payment amount
`was calculated by applying a discounted rate of $.1 0 per side for futures and $1.00 per
`million dollar increment for fixed income cash to all estimated trades resulting from
`orders entered and/or modified in any Ladder in STELLAR Software and to twenty
`percent (20%) .of all estimated trades resulting from ordei:s entered otherwise but that
`were accessible by a Ladder in STELLAR Software during the lifecycle of the order.
`The one-time payment amount shall be non-refundable. The payment amount is based on
`STELLAR's best estimates of volumes using infringing software made during the period
`from May 2009 to the end of the Transition Period in the United States. STELLAR
`represents and wammts that prior to the Execution Date, its software has only been used
`to electronically trade in the U.S. futures, and options on futures, and fixed income cash
`(bond) products and not other asset classes.
`
`The Parties 11gree that the one-time payment set forth in Section 3.1 above is a
`3.2.
`discount from the reasonable value of a license under the patented innovations. For
`example, STELLAR acknowledges that (i) many of the patented innovations provide an
`
`6
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`TTX03359144
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`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 payment set forth above. but rather would amount to a
`portion of the entity's profits which could be larger than such payment
`
`In exchange for the one-time payment required by Section 3.1, IT and its Current
`3.3.
`Affiliates hereby release, acquit and forever discharge STELLAR and its directors,
`officers, members, employees, agents, attorneys, and Current Affiliates from any and all
`claims, col.m.terclaims (including compulsory counterclaims that could have been brought
`in the Lawsuit) or liability for infringement (including inducement and contnbutory
`infringement), known or unknown, of any of the Patents-in-suit by the manufacture,
`importation, use, sale, offer for sale, lease, license, offer for license or other disposition or
`distribution of STELLAR Software prior to the Execution Date. IT and its Current
`Affiliates further release, acquit and forever clischarge STELLAR'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(cid:173)
`suit by the use, sale, offer for sale, importation or other disposition or distribution of
`STELLAR Sofh>.'llre obtained from, or given access by, Stellar prior to the Execution
`Date.
`
`Stellar and its Current Affiliates hereby release, acquit and forever discharge IT
`3.4.
`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 Lawsuit) or liability, known or unknown, (i) relating to the Patents-in-suit and/or
`the Lawsuit and arising prior to the Execution Date and (ii) for infringement (including
`inducement and contributory infringement) of any STELLAR 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.
`
`The payment due to TI pursuant to Section 3.1 shall be paid by wire transfer to
`3.5.
`the following account:
`
`Wire Transfer Account
`
`JPMorgan Chase Bank, N.A.
`10 S. Dearborn 3 5lh Floor
`Chicago, IL 60603
`Wire Transfer Dept: (888) 434-3030
`Account Name: Trading Technologies, Inc.
`Account#:5300066087
`Routing#: 021000021
`Swift#~ CHASUS33
`
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`case: 1:10-cv-00882 Document#: 55 Filed: 02/04/14 Page 13 of 47 PageiD #:469
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`ARTICLE 4: PATENT MARKING
`
`Promptly following the Effective Date and throughout the Tenn. STELLAR shall
`4.1.
`mark its Permitted Products in the U.S. with the following notation in a manner to be
`approved by TI, which approval shall not be unreasonably withheld (e.g., on a splash
`screen and/or an about box): .. Use permitted under Trading Teclmologies International,
`Inc.'s U.S. Patent No. 7,533,056, 7,212,999 and 7,680,724".
`
`From the Effective Date and throughout the tenn of this Agreement, in
`4.2
`recognition that additional patents, such as for example, continuation and/or divisional
`.
`patents, in the future may fall within the scope ofTI Patents, STELLAR shall mark
`Permitted Products in the U.S. as further instructed by TT 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 about box): "Use pennitted under Trading Technologies
`International, Inc.'s U.S. Patent Nos. [INSERT APPLICABLE PATENT NUMBERS
`PER IT'S INSTRUCTIONS]."
`
`STELLAR agrees that IT, 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 ·
`STELLAR to mark other TT Patents than the patents identified in the current instructions
`or to remove patents identified in tlw current instructions by providing STELLAR with
`written notice of the specific patent(s) to be marked and the type ofproduct(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 IT, which approval shall not be unreasonably withheld (e.g., on a splash
`screen and/or an about box) and shall state "Use permitted under Trading Technologies
`International, Inc.'s [the relevant patent(s)]."
`
`TT shall indemnify, defend, and hold harmless STELLAR and its directors,
`4.4.
`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 STELLAR alleging STELLAR's false marking
`of IT Patents based on STELLAR's compliance with this Article 4, provided that
`STELLAR:
`
`4.4.1. notifies TI in writing as soon as reasonably practicable after becoming
`aware of any claim or threatened action;
`
`4.4.2. notifies TT 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 TI (but only at the request ofTf) in the
`defense of such claim; and
`
`4.4.4. allows IT full control of the defense ofthe claim (including any
`compromise related to the claim) on STELLAR's behalf; provided that IT will not
`
`8
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`TTX03359146
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`Page 13 of 58
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`case: 1:10-cv-00882 Document#: 55 Filed: 02/04/14 Page 14 of 47 PageiD #:470
`
`without STELLAR'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 STELLAR or any monetary payment by STELLAR.
`
`4.5. Notwithstanding anything herein to the contrary, TI shall have no liability for and
`no obligation to defend any STELLAR or any Indemnified Entity against. any claim of
`false marking to the extent such claim arises from STELLAR's failure to comply with
`TT's instructions regarding marking pursuant to Sections 4.1-4.3.
`
`The remedies set forth in Section 4.4 shall be STELLAR's sole and exclusive
`4.6.
`remedy and TT's sole and exclusive liability in the event of any false marking claim.
`
`In the event STELLAR has a good faith belief that a product change results in its
`4. 7.
`current marking pursuant to IT's instructions as incorrect, then STELLAR shall notify
`TI of such belief.
`
`ARTICLE 5: TERM. TERMINATION AND ASSIGNABILITY
`
`This Agreement shall become effective upon the Effective Date retroactive to the
`5.1.
`Execution Date and shall remain in full force and effect until the earlier of the expiration
`of the Term or all unexpired IT Patents have been found to be invalid or unenforceable
`in a final non-appealable judgment, unless it is terminated earlier as pennitted in this
`Agreement. Upon the expiration of the Term or any earlier tenni.nation, all provisions of
`this Agreement (including any license rights granted herein) shall terminate except as
`provided in Section 5.5.
`
`5.2. Any Party to this Agreement (a "Notifying Party"), in addition to any other
`remedies that it may have, may at its election terminate this Agreement, effective upon
`written notice to another