BY CLICKING ON THE “ACCEPT” BUTTON AND PROCEEDING TO INSTALL THIS SOFTWARE, THE LICENSEE IS CONSENTING TO BE BOUND BY AND TO BECOMING A PARTY TO THIS AGREEMENT. IF THE LICENSEE DOES NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, CLICK ON THE “DO NOT ACCEPT” BUTTON, CEASE THE INSTALLATION OF THIS SOFTWARE AND IMMEDIATELY RETURN THE SOFTWARE TO BRIGHTBOX SOFTWARE PTY LIMITED
A. Brightbox Software Pty Ltd (Brightbox) has developed and is the owner of Intellectual Property Rights in earthwork estimating software known as ‘MudShark’ (the Software).
B. The purchaser of the licence to use the Software (the Licensee) wishes to obtain a licence for use of the Software by persons authorised to do so in accordance with the terms of this agreement.
C. Brightbox has agreed to grant a licence of the Software to the Licensee on the terms set out in this agreement.
2.1. Intellectual Property Rights means all intellectual property rights in any country including but not limited to: patents, copyright, registered designs, trademarks and the right to have confidential information kept confidential, and any application or right to apply for registration of any these rights.
3.1. In consideration of the payment of the Licence Fee by the Licensee, Brightbox grants the Licensee a non-exclusive, non-transferable licence to use the Software and an electronic User Guide (the Documentation) for the agreed number of users in accordance with the terms of this agreement.
3.2. The licence commences when the Licensee agrees to accept the terms of this agreement upon installation and unless terminated in accordance with this agreement, shall continue in perpetuity.
3.3. Any modifications, upgrades or enhancements supplied by Brightbox to the Software are subject to the terms of this agreement.
4. SCOPE OF LICENCE
4.1. Brightbox grants to the Licensee a fixed or floating licence, whichever form of the Licence is purchased by the Licensee.
4.2. If the Licensee is granted 1 or more fixed licences, for each licence the Software may be used by a single user only with a single active installation. To activate the licence on another computer the Software must be deactivated by way of uninstalling the Software. This requires an internet connection.
4.3. If the Licensee is granted 1 or more floating licences, for each licence the Software may be used by multiple users but on the condition that only one user may have the Software active at any given time. For a different user to use the Software or for the Software to be activated on another machine the Software must be deactivated on the original machine this requires an internet connection.
4.4. The Licensee must:
(a) pay the Licence Fee which is notified by Brightbox to the Licensee at the time of making this agreement;
(b) ensure that the Software is used in accordance with the conditions of a fixed or floating licence, subject to the type of licence which has been purchased;
(c) ensure that the Software and Documentation is used only for the Licensee’s internal business purposes;
(d) use its best endeavours and take all necessary steps to safeguard the Software and the Documentation to ensure that there is no unauthorized use of the Software or the Documentation.
4.5. The Licensee must not, directly or indirectly:
(a) assign, sell or sub-licence the Software or the Documentation or any rights or obligations under this agreement without the prior written consent of Brightbox which Brightbox reserves the right to withhold;
(b) alter, modify, adapt, translate, tamper with, reverse engineer or attempt to reverse engineer, decompile, disassemble or create derivate works based on the Software or the Documentation in any way;
(c) copy or reproduce the Software or the Documentation in any form;
(d) allow the Software or the Documentation to be combined with any or incorporated into other software;
(e) modify or remove any copyright or proprietary notices or labels on the Software or the Documentation;
4.6. The Licensee acknowledges that any copies, reproductions, alternations, modifications, adaptations or derivatives or any computer programs or other property combined or incorporated with the Software and any Intellectual Property Rights created as a result shall be the property of Brightbox and will do all things necessary to vest ownership in Brightbox.
4.7. If the Licensee uses the Software or the Documentation other than in accordance with the terms of this agreement or becomes aware of any unauthorized use, the Licensee must immediately notify Brightbox in writing. This notice shall not prejudice any other rights of Brightbox.
5.1. The Licensee must pay to Brightbox the Licence Fee notified by Brightbox and when required by Brightbox to do so.
5.2. The Licensee will have no right to any refund of the Licence Fee, including on termination of this agreement.
6. ACCESS TO THE SOFTWARE
6.1. Upon receipt of payment of the Licence Fee, Brightbox will supply the Licensee with a unique Licence Key which will enable the Licensee to activate the Software which allows the user to run the Software and access functionality.
6.2. To operate the Software, the Licensee will require additional software and hardware (not supplied by Brightbox) as set out in the Schedule and an active internet connection to activate and deactivate the Software.
7. SUPPORT SERVICES AND SOFTWARE UPDATES
7.1. Payment of the Licence Fee will entitle the Licensee to a limited period of software assurance provided by Brightbox which includes support of the Software and provision of product updates in accordance with this clause.
7.2. Payment of the Licence Fee will entitle the Licensee to receive free updates to the Software within the major version of the Software which is the subject of this agreement. For the sake of clarity, it the Licensee purchases the Software at Version 1.4.1 and Brightbox release Version 1.4.2, the Licensee is entitled to receive the update as it is within Version 1 of the Software. However, the Licensee is not entitled to receive updates to Version 2 of the Software unless it has active Software assurance. Any dispute as to what constitutes a major version of the Software or a free update within the major version of the Software shall be determined wholly at the discretion of Brightbox.
7.3. For the life cycle of the Software version which is licensed to the Licensee, Brightbox will provide the following support in connection with the Software:
(a) identifying and troubleshooting problems with the Software;
(b) providing workarounds and solutions where possible;
(c) creating bug reports and feature requests;
(d) providing guidance on installation and configuration;
(e) providing upgrade assistance.
7.4. The Licensee acknowledges that:
(a) updates to other software programs used by the Licensee (such as OS or drivers for video cards) may be necessary for the correction of identified problems;
(b) the Licensee may need to provide Brightbox remote access to its computers for the purpose of providing support;
(c) the duration of the life cycle of the Software version which is licensed to the Licensee is at the discretion of Brightbox; and
(d) Brightbox will only apply fixes to the latest version of the Software.
7.5. Brightbox support does not include:
(a) responding to development questions or requests;
(b) assisting third party application integrations or third party plug ins;
(c) providing Beta or development releases;
(d) providing product training;
(e) providing non-English language support; or
(f) generic computer support or troubleshooting.
7.6. The Licensee has the option of obtaining additional Software assurance in connection with the Software beyond the limited period at further cost to it.
8.1. Brightbox warrants that:
(a) it has the full right, power and authority to enter into this agreement and to grant the Licensee all rights which are conferred under this agreement;
(b) use of the Software and Documentation by the Licensee in accordance with the terms of this agreement will not infringe the Intellectual Property Rights of any third party.
8.2. Brightbox expressly excludes:
(a) any representation that the Software will work with any particular software or hardware, including the software or hardware recommended in this agreement; and
(b) all implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute or cause any part of this clause to be void (Non-excludable Condition).
8.3. Without limiting the generality of the exclusion in clause 8.2, to the extent permitted by law, Brightbox does not warrant that: (a) use of the Software will be free from error, bugs or uninterrupted and the Licensee acknowledges that the existence of any error, bugs or interruption does not constitute a breach of this agreement; or (b) the Software or the Documentation are or will be suitable for the Licensee’s requirements.
8.4. Nothing in this agreement excludes or limits the application of any provision of any statute (including the Competition and Consumer Act 2010) where to do so would contravene that statute or cause any part of this clause to be void.
8.5. The Licensee acknowledges that, except for the express terms provided in this Agreement, it has not relied on any information, representation or warranties supplied or given by or on behalf of Brightbox or any of its directors, officers, employees or agents or in relation to this agreement.
9. LIMITATION OF LIABILITY
9.1. To the extent that it is able to do so, Brightbox expressly limits it’s liability to the Licensee for breach of any Non-excludable Condition (other than an implied warranty of title) is limited, at Brightbox’s option, to:
(a) refunding the Licence Fee; or
(b) replacing the Software or the Documentation; or
(c) paying the cost of replacing the Software or the Documentation.
9.2. To the extent permitted by law, Brightbox specifically excludes all liability for any indirect or consequential loss or damage (including but not limited to lost revenue, lost profits or loss of data) incurred or suffered by the Licensee arising directly or indirectly out of:
(a) the supply, delay in supplying or failure to supply the Software or the Documentation;
(b) use of the Software or the Documentation;
(c) any errors in the Software or the Documentation;
(d) infringement of Intellectual Property Rights in the Software or the Documentation;
(e) this agreement; or
(f) termination of this agreement.
10.1. The Licensee must at all times release and indemnify Brightbox and its directors, officers, employees and agents from and against all liabilities, claims, damages, suits, expenses, causes of action, injuries or losses brought by any person arising in any way from the exercise by the Licensee of its rights under this agreement, use by any person of the Software or the Documentation or any willful, unlawful or negligent act or omission of the Licensee.
10.2. The Licensee is solely responsible for the use, management and control of the Software.
11.1. The Licensee agrees that the Software and the Documentation is valuable commercial information which is confidential to Brightbox.
11.2. The Licensee shall take all reasonable steps to maintain and safeguard the confidentiality of the Software and the Documentation and to ensure that its employees and agents maintain the confidentiality of the Software and the Documentation.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. The Licensee acknowledges and agrees that Brightbox owns valuable Intellectual Property Rights in the Software and the Documentation which remain the sole property of Brightbox and that this agreement does not confer on the Licensee or transfer to the Licensee any Intellectual Property Rights in the Software or the Documentation.
13. TERMINATION OF THIS AGREEMENT
13.1. This agreement will continue in perpetuity unless terminated in accordance with clauses 13.2 and 13.3.
13.2. Brightbox may terminate this agreement at any time with immediate effect by giving written notice to the Licensee if: (a) the Licensee materially breaches any term of this agreement or any of Brightbox’s Intellectual Property Rights and does not remedy the breach within 30 days of a notice from Brightbox requiring the Licensee to do so;
(b) the Licensee becomes insolvent or any step is taken to appoint a receiver, manager, liquidator or administrator to the Licensee.
13.3. The Licensee may terminate this agreement by immediately returning to Brightbox all copies (including any modified copies) of the Software and the Documentation.
13.4. The parties agree that upon termination of this agreement, all rights granted by Brightbox to the Licensee shall cease immediately, Brightbox will deactivate the licence on its server and the Licensee must immediately:
(a) stop using the Software and the Documentation; and
(b) return to Brightbox all copies (including any modified copies) of the Software and the Documentation; and
(c) provide a written notice to Brightbox that it has ceased to use the Software and the Documentation, and that the Software and Documentation have been returned to Brightbox, or otherwise as directed by Brightbox.
13.5. The termination of this agreement will not affect or limit any accrued rights of the parties.
14.1. This agreement constitutes the entire agreement between the parties as to its subject matter and supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation given by Brightbox.
14.2. The provisions of this agreement cannot be varied, except by agreement in writing duly signed on behalf of the parties.
14.3. This agreement shall be governed by the laws of New South Wales. The parties agree to submit to the non-exclusive jurisdiction of the Courts of New South Wales.
Clause 6.2 –software requirements
Recommended Operating System (OS): Windows 7 64 bit
Supported OS (32 or 64 bit): Windows 7, Vista, XP SP3, Windows Server 2003 and Windows Server 2008
.NET Framework 4
SQL Server Express 2005 SP2 or better. If not present the installer will install SQL Server Express 2008 R2
Clause 6.2 – hardware requirements
Intel Processor (or AMD Equivalent): Brightbox recommends i5 2.6 GHz but minimum requirement is Intel Dual Core 1.86GHz
Memory: Brightbox recommends 4+ GB Ram but minimum requirement is 2 GB Ram.
Graphics Card: Brightbox recommends 1 GB Ram. Open GL 2.0 or higher compatible card with up to date drivers but minimum requirement is 256 MB Ram. Open GL 2.0 or higher compatible card with up to date drivers.
Hard Drive Space: Brightbox recommends 1 GB free space which is also the minimum requirement.
For best results, Brightbox recommends use of a 2 button mouse with a scroll wheel as well as at least one 24 inch HD monitor. For activation an internet connection is required.