EXHIBIT 10.2
SETTLEMENT AGREEMENT
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This Settlement Agreement (this "Agreement") is entered into between the
Business Software Alliance (the "BSA"), and NTN Communications, Inc., a Delaware
corporation ("NTN"), as of the date signed by NTN as indicated below (the
"Effective Date").
RECITALS
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A. The BSA is a trade association representing software publishers in the
business of developing and marketing a variety of computer software products
(the "Computer Software Products");
B. A dispute has arisen regarding NTN's alleged unauthorized copying or
use of certain of the Computer Software Products in the course of its business;
and
C. The BSA and NTN have reached an agreement resolving that dispute and
wish to evidence that agreement in writing.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth below, the BSA and NTN agree as follows:
1. COMPLIANCE
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1.1 Certification of Compliance. Not later than two hundred (200) days
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after the Effective Date, NTN, through one of its corporate officers, shall
deliver to the law firm of Donahue Gallagher, Woods & Wood, LLP (the "BSA's
Attorneys") a certification, in the form of Exhibit A, attached hereto and
hereby incorporated herein, certifying that:
(a) the software audit results provided to the BSA during the
negotiation of this settlement are true and accurate and contain a complete and
accurate list of all copies of all Computer Software Products on NTN's computers
as of September 8, 1998;
(b) all Computer Software Products installed on NTN's computers for
which NTN does not have a license have been destroyed; and
(c) all remaining copies of the Computer Software Products installed,
used or operated on NTN's computers are licensed to NTN and are utilized solely
in accordance with the Computer Software Products' respective licenses.
1.2 Schedules. NTN shall attach to the certification required by Section
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1.1 hereof the following schedules:
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(a) a list identifying each Computer Software Product that was
destroyed pursuant to Section 1.1(b) hereof, and the number of copies destroyed;
(b) a list identifying all Computer Software Products, including
version number, purchased by NTN since September 8, 1998, the quantity of
licenses for each Computer Software Product purchased, the dates of the
purchases, and the price paid; and
(c) copies of receipts or invoices reflecting proof of each purchase
listed in Section 1.2(b) hereof.
1.3 Warranty of Continued Compliance. NTN hereby warrants that all copies
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of the Computer Software Products coming into its possession or under its
control from the Effective Date forward will be licensed to NTN and installed
and utilized solely in accordance with the applicable license agreement for each
such Computer Software Product.
1.4 Software Code of Ethics. NTN shall execute the Software Code of Ethics
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attached hereto as Exhibit B and hereby incorporated herein (the "Code"). Within
two hundred (200) days following the Effective Date, NTN shall deliver a copy of
the executed Code to all of NTN's affiliated companies, employees, agents,
and/or personnel, as well as to the BSA's Attorneys with confirmation of
delivery to such other parties. NTN shall provide a copy of the Code to all new
employees at the commencement of their employment at NTN, and shall reissue the
Code annually for three (3) years following the Effective Date.
1.5 Inspections. For three (3) years following the Effective Date, NTN
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shall permit the BSA, at the BSA's option and expense, to conduct two (2)
inspections per year of NTN's computers at each of NTN's offices or locations to
confirm the absence of infringing copies of the Computer Software Products. The
BSA agrees to provide one (1) week's notice of any such inspection and to
conduct any such inspection in a manner designed to minimize any disruption to
NTN's business activities. In the event the BSA discovers any unlicensed
Computer Software Products during an inspection, NTN shall reimburse the BSA for
the cost of the inspection. NTN agrees that this cost reimbursement shall be
separate from and in addition to any damages or costs for which NTN may be
liable under the Copyright Act as a result of any infringement discovered during
any such inspection.
2. RESOLUTION OF LIABILITY
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2.1 Settlement Payment. NTN shall pay to the BSA the sum of Three Hundred
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Thirty-nine Thousand Eight Hundred Sixty-four and 24/100 Dollars ($339,864.24).
This amount shall be paid in ten (10) installment payments, as follows. The
first payment, due upon NTN's execution of this Agreement, shall be in the
amount of Thirty-three Thousand Eight Hundred Sixty-four Dollars and Twenty-four
Cents ($33,864.24). The remaining balance will be paid in nine (9) equal monthly
installment payments of Thirty-four
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Thousand Dollars ($34,000) each, and will be due on the 1st day of each month
commencing December 1, 1999 and continuing through August 1, 2000. Each such
payment shall be in the form of a check made payable to the "Business Software
Alliance," and shall be delivered via overnight courier/service, to the BSA's
Attorneys.
2.2 Release. Through the BSA, Adobe Systems Incorporated, a Delaware
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corporation; Autodesk, Inc., a Delaware corporation; Microsoft Corporation, a
Washington corporation; and Symantec Corporation, a Delaware corporation; each
hereby releases and forever discharges NTN, its officers, directors, employees,
shareholders, attorneys and assigns from any and all claims, demands, causes of
action, actions and costs relating to the alleged unauthorized copying and use
of its respective Computer Software Products listed below, occurring before the
one hundred eighty-first (181st) day following the Effective Date: Adobe
Acrobat(R) software, Adobe After Effects (R) software, Adobe Illustrator(R)
software, Adobe PageMaker(R) software, Adobe(R) PhotoDeluxe(TM) software, Adobe
Photoshop(R) software, Adobe Premiere(R) software, Autodesk(R) 3D Studio MAX(R)
software, Microsoft(R) Access software, Microsoft(R) C++ software, Microsoft(R)
Excel software, Microsoft(R) Exchange software, Microsoft(R) Frontpage(R)
software, Microsoft(R) Frontpage(R) Web software, Microsoft(R) MS-DOS(R)
software, Microsoft(R) Outlook(TM) software, Microsoft(R) PowerPoint(R)
software, Microsoft(R) Visual Basic(R) software, Microsoft(R) Visual Basic(R)
Enterprise software, Microsoft(R) Visual Basic(R) Professional software,
Microsoft(R) Visual Internet Developer software, Microsoft(R) Windows NT(TM)
Workstation software, Microsoft(R) Windows(R) software, Microsoft(R) Word
software, Symantec(R) Norton Utilities software, Symantec(R) pcAnywhere(R)
software, and Symantec(R) Visual Cafe software; provided, however, that this
release is conditioned on the accuracy of the representations and the
performance of the obligations listed in Sections 1 through 2.1 of this
Agreement. Additionally, in no event shall this release extend to any claim that
NTN has engaged in the sale or transfer of any Computer Software Product to any
person or entity not related to NTN or that any proprietary rights in any of the
Computer Software Products specifically identified in this Section have been
infringed by the incorporation of any Computer Software Product, or part
thereof, into any software product produced, transferred or sold by NTN or its
principals, agents and/or employees.
3. MISCELLANEOUS
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3.1 Entire Agreement. This Agreement and the exhibits attached hereto set
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forth the entire agreement of the BSA and NTN. No amendment may be made to this
Agreement unless it is in writing and signed by the BSA and NTN.
3.2 Attorneys' Fees. In the event that legal action is brought to enforce
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the terms of this Agreement, the prevailing party in any such legal action or
proceeding shall be entitled, in addition to any other rights and remedies it
may have, to an award of the costs of the action, including an award of court
costs, actual attorneys' fees and experts' fees.
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3.3 Severability. In the event any provision of this Agreement is held
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invalid, illegal, or unenforceable by a court of competent jurisdiction, that
provision shall be severed from this Agreement and the remaining provisions
shall continue in force.
3.4 Binding Agreement. The terms and provisions of this Agreement shall be
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binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors, transferees and assigns. This Agreement shall become
binding and effective upon its execution by both parties.
3.5 Jurisdiction. This Agreement shall be governed by the laws of the
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District of Columbia, without regard to its conflict of laws principles. NTN
expressly consents to the personal jurisdiction of the courts of the District of
Columbia with respect to any dispute arising out of this Agreement.
IN WITNESS WHEREOF, the BSA and NTN have executed this Agreement as of the
date signed by NTN.
NTN COMMUNICATIONS, INC.
By: /s/ Kendra Berger
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Name: Kendra Berger
Title: Chief Financial Officer
Date: 11/1/99
BUSINESS SOFTWARE ALLIANCE
By:
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Robert W. Holleyman II
President
Date:
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EXHIBIT A
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CERTIFICATE OF COMPLIANCE OF
NTN COMMUNICATIONS, INC.
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I, ______________________________, am the __________________________ of NTN
Communications, Inc. ("NTN") and am authorized to provide this certificate.
As of __________________, 2000, (180 days following the Effective Date of
the Settlement Agreement between the Business Software Alliance [the "BSA"] and
NTN [the "Agreement"]), I hereby certify that:
(a) the information and audit results provided to the BSA and/or its
attorneys during the negotiation of the settlement described in the Agreement
are true and accurate and contain a complete and accurate list of all copies of
all computer software products developed and marketed by the software companies
whose interests are represented by the BSA (the "Computer Software Product")
installed on NTN's computers as of September 8, 1998;
(b) all Computer Software Products installed on NTN's computers for which
NTN does not have a license have been destroyed;
(c) all remaining copies of the Computer Software Products installed on
NTN's computers are licensed to NTN and utilized solely in accordance with their
licenses.
I further certify that attached hereto as Schedule 1 is a list of the
Computer Software Products destroyed as certified in paragraph (b) above;
attached hereto as Schedule 2 is a list of the Computer Software Products,
including version number, purchased by NTN since September 8, 1998, the quantity
of the licenses for the Computer Software Products purchased, the dates of the
purchases, and the price paid; and attached hereto as Schedule 3 are copies of
receipts or invoices as proof of the software purchases described in Schedule 2.
I declare under penalty of perjury under the laws of the State/Commonwealth
of ______________________ and the United States that the foregoing is true and
correct.
Executed this _____ day of _________________, 2000, at ___________________,
California.
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