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Pica8 End User License Agreement (EULA)

LICENSE AGREEMENT FOR Pica8™ SOFTWARE

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE USING SOFTWARE FROM PICA8. BY OPENNING THE PACKAGE, INSTALLING OR USING PICA8 SOFTWARE, YOU SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF THIS END USER LICENSE AGREEMENT AND ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THE TERMS. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS END USER LICENSE AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE THE PICA8 SOFTWARE. THIS END USER LICENSE AGREEMENT DOES NOT PROVIDE ANY RIGHTS TO PICA8 SERVICES SUCH AS SOFTWARE MAINTENANCE, UPGRADES OR SUPPORT. PLEASE REVIEW YOUR MAINTENANCE AND SUPPORT AGREEMENT(S) THAT YOU MAY HAVE WITH PICA8 OR AN AUTHORIZED PICA8 SERVICE PROVIDER REGARDING SERVICES AND ASSOCIATED PAYMENTS.

This end user license agreement (“EULA”) governs the use of any of the versions of Pica8 PicOS, certain other Pica8 software applications that include or refer to this license, and any related updates, source code, appearance, structure and organization (the “Programs”), regardless of the delivery mechanism.

1. License Grant. Subject to the following terms, Pica8, Inc. (“Pica8”) grants to you a perpetual, non-exclusive, non-transferable worldwide license (without the right to sub-license) to the Programs (most of which include multiple software components). You are entitled to all bug fixes and updates to the Program of each registered Pica8 product, when and if available, that Pica8 makes generally available to its customers receiving maintenance and support, provided you have enrolled in the maintenance and support program and paid the maintenance and support fees. This EULA pertains solely to the Programs and does not limit your rights under, or grant you rights that supersede, the license terms of any particular component.

2. Permitted Uses and Restrictions. This License allows you to install and use the Program on any one computing device.
You may transfer this License, provided that the party to whom such rights are transferred agrees to the terms and conditions of this License. Upon such transfer, you must destroy all copies of the Software. The Programs and each of their components are owned by Pica8 and other licensors and are protected under copyright law and under other laws as applicable. Title to the Programs and any component, or to any copy, modification, or merged portion shall remain with Pica8 and other licensors, subject to the applicable licenses. The “Pica8”, “XORPlus” and the “XORP” logo are trademarks of Pica8, and are owned by Pica8 in the U.S. and other countries. This EULA does not permit you to distribute the Programs or their components using Pica8’s trademarks, regardless of whether the copy has been modified. You may make a commercial redistribution of the Programs only if permitted under a separate written agreement with Pica8 authorizing such commercial redistribution. Modifications to the software may corrupt the Programs. You may not disclose any information relating to the performance or operation of the Program (including any benchmarking or other testing results) to any third party without Pica8’s express prior written consent.

3. Limited Warranty. Pica8 warrants the media on which the Pica8 Software is recorded to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of original retail purchase. Your exclusive remedy under this paragraph shall be, at Pica8’s option, a refund of the purchase price of the product containing the Pica8 Software or replacement of the Pica8 Software which is returned to Pica8 or a Pica8 authorized representative with a copy of the receipt. Pica8 warrants that, to the knowledge of Pica8 and except as disclosed in the product documentation, the Pica8 Software contain no time bombs or other codes or instructions, that may be used by Pica8 to access, modify, delete or disable your computer systems or those of other parties accessing your computer system. Pica8 warrants that it has used commercially reasonable means to protect against the introduction of viruses by the Pica8 Software to your computer system. THIS LIMITED WARRANTY AND ANY IMPLIED WARRANTIES ON THE MEDIA INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF ORIGINAL RETAIL PURCHASE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THIS LIMITATION MAY NOT APPLY TO YOU. THE LIMITED WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHERS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. PICA8 SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.

Restrictions. This warranty does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Pica8 or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Pica8, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration
purposes. The Software warranty also does not apply to (e) any temporary Software modules; (f) any Software not posted on Pica8’s official web site; (g) any Software that Pica8 expressly provides on an “AS IS” basis on Pica8’s web site; (h) any Software for which an Approved Source does not receive a license fee; and (i) Software supplied by any third party
which is not an Approved Source.

4. Disclaimer of Warranty on Pica8 Software. The Pica8 Software is provided “AS IS” and without warranty. PICA8 EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. PICA8 DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PICA8 SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE PICA8 SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PICA8 SOFTWARE WILL BE CORRECTED. FURTHERMORE, PICA8 DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PICA8 SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PICA8 OR A PICA8 AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
SHOULD THE PICA8 SOFTWARE PROVE DEFECTIVE, YOU (AND NOT PICA8 OR A PICA8 AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THE TERMS OF THIS DISCLAIMER DO NOT AFFECT OR PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER ACQUIRING PICA8 PRODUCTS OTHERWISE THAN IN THE COURSE OF A BUSINESS, NEITHER DO THEY LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY PICA8’S NEGLIGENCE.

5. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL PICA8 BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Pica8’s total liability to you for all damages exceed the amounts paid by you hereunder.

6. Indemnification. Pica8 will defend, and pay any damages awarded against, you or your successors, employees, officers or directors from any and all third party claims, suits, demands and causes of action, (including but not limited to attorney’s or expert witness fees) arising out of any direct or indirect infringement of any copyright, trade secret or U.S. or Canadian patent as a result of the use of the Pica8 products supplied by Pica8 hereunder, provided that you: (1) promptly provide written notice to Pica8 with regard to any such claim or action, (2) allow Pica8 sole control of the defense and related settlement negotiations with regard to any such claim or action and (3) cooperate with Pica8 in the defense thereof. In the event an injunction is obtained against your use of any products or services supplied hereunder, by reason of the allegations, or if the products are likely to become the subject of a claim of infringement or violation of copyright, trade secret or other proprietary right of a third party, Pica8 may, at its own expense: (x) procure for you the right to continue to use Pica8’s products as contemplated or (y) replace or modify the products so that they become non-infringing, provided that such modifications or replacements do not materially and adversely affect the functionality of the products.

7. Export Control. You may not use or otherwise export or re-export the Pica8 Software except as authorized by United States law and the laws of the jurisdiction in which the Pica8 Software was obtained. In particular, but without limitation, the Pica8 Software may not be exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. By using the Pica8 Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.


8. Third Party Programs. Pica8 may distribute third party software programs with the Programs that are not part of the Programs. These third party programs are not required to run the Programs, are provided as a convenience to you, and are subject to their own license terms. The license terms accompany the third party software programs. If you do not agree to abide by the applicable license terms for the third party software programs, then you may not install them. If you wish to install the third party software programs on more than one system or transfer the third party software programs to another party, then you must contact the licensor of the applicable third party software programs.

9. Government End Users. If the Pica8 Software is supplied to the United States Government, the Pica8 Software is classified as “restricted computer software” as defined in clause 52.227-19 of the FAR. The United States Government’s rights to the Pica8 Software are as provided in clause 52.227-19 of the FAR.

10. General. If any provision of this EULA is held to be unenforceable, the enforceability of the remaining provisions shall not be affected. Any claim, controversy or dispute arising under or relating to this EULA shall be governed by the laws of the State of California and of the United States, without regard to any conflict of laws provisions. The rights and obligations of the parties to this EULA shall not be governed by the United Nations Convention on the International Sale of Goods.

11. Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of the Pica8 Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Pica8.

Pica8, Inc.

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Definitions

“Company” means Pica8, Inc. and its affiliates.

“Documentation” means the user manuals or other technical information published by Pica8.

“Company Support Representative” means individual, either Pica8’s staff or Pica8’s authorized support provider, designated by Pica8.

“Products or Hardware Products” means collectively, all Pica8 published family of Hardware products.

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Hardware Warranty

Company warrants to the Original Purchaser that all Hardware Products sold by Company that are shipped on and after April 1, 2015 are free from defects in workmanship and materials and shall perform in comply with (i) the Product specifications as published under normal use and service, (ii) the Product Documentation and (iii) all applicable United States laws, rules and regulations in effect at the time of Hardware Product shipment to Customer for a period of two and half (2.5) years after shipment to Customer. If any Products or part thereof, contains a defect in materials or workmanship, or otherwise fails to conform to the Product specifications, during the warranty period, Company shall, at its option and expense, correct any such defect by replacing, or repairing such defective Product. The Company 2.5-year Hardware Limited Warranty is available to the Original Purchaser only and is non-transferrable. The Hardware Limited Warranty does not cover transceivers and cabling.

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Warranties Exclusive

THE FOREGOING WARRANTIES, TERMS OR CONDITIONS ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL DAMAGES.

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Warranties Exclusions

COMPANY SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSES THAT THE ALLEGED DEFECT IN THE PRODUCT DOES NOT EXIST OR WAS CAUSED BY CUSTOMER’S OR ITS END USER’S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO REPAIR, OR BY ACCIDENT, FIRE, LIGHTNING OR OTHER HAZARD. COMPANY DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS TRANSMITTED BY THE PRODUCT.

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Warranty Nullification

If Company deems the product to be mishandled, mistreated, improperly installed or configured, electrical stress, packaged incorrectly, upgraded incorrectly, misapplied, misused, improperly installed, negligence, or defective due act of God or accident, or abuse in any way – the warranty is nullified. In addition, this warranty is nullified if any of the following tampering conditions have been found with our labels or seals (removed or broken), setup has been altered, changed, or upgraded (inclusive of modules and/or line cards and/or components). If it is determined during the testing of defective returned equipment that hardware has been damaged due to any of the above reasons, customer will be subject to any and all repair charges. Company does not cover upgrades or compatibility with either previous or future releases of hardware or software.

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Warranty Repairs

(a) Product Repairs. Upon notification of an impaired Product, Company Support Representative shall work with the Customer to correct the problem. If Company Support Representative determines a Warranty repair is necessary, then Customer shall return the defective unit or part to Company or its authorized service center following the RMA procedure in this Section (b).


(b) Return Material Authorization (RMA). The following procedure shall apply to Company’s Repair of Products under Warranty.

     (i) Management. Company will use its best efforts to provide Customer with an RMA number within one (1) business day after receipt of request. RMA requests will be approved only if the Product is still within the stated warranty period and must be received by Company within 15 calendar days from the expiration of the Warranty period. If the Product is received after 15 calendar days, it will not be accepted by Company and will not be eligible for repair or replacement. Customer will ship RMA unit to Company or its authorized service center. Customer shall include enough problem or defective information to allow Company to reproduce the problem promptly.

     (ii) Turn-Around Time. Company will repair any defective Product within which it can reproduce the problem and forward the same back to Customer within five (5) business days after received of the defective unit. If the defective Product cannot be repaired, a replacement unit will be returned. If it is determined during the testing of defective returned equipment that no defect of any kind is found, Customer may be subject to any and all inspection and testing charges and will be responsible for the cost of returning shipping charge and insurance.

     (iii) Advanced Replacement. At Customer’s option, Company will provide an advanced replacement unit. Contact Company Support Representative and provide a completed Company Credit Card Authorization Form, a completed RMA (Return Merchandise Authorization Form), and the replacement product will be shipped to customer the next business day. Upon re-establishment of service, Customers are responsible for the return of the suspect Hardware in the same packaging. Failure to return the parts and/or units within the time frame requested by Company will result in Customer being billed for the cost of the parts and/or units. Customer is responsible for shipping cost both ways.

     (iv) Shipping Charge, Tariff and Tax. During the warranty period, Customer will pay transportation charges and assume risk of loss for Products shipped to Company for Repair. Company will pay transportation charges by UPS ground, FedEx ground service, or equivalent economy rate for International shipment and assume risk of loss for all Products returned to Customer during the warranty period. Customer is responsible for all applicable tariffs, taxes and tolls. Customer can request and pay for expedited service by providing Customer’s own UPS or FedEx number, or by credit card prepayment. After warranty expires, Customer shall pay all (round trip) shipping charges.

     (v) Packaging requirements. On all Products returned to Company, Customer shall affix label that identifies Product, including model number, serial number, current revision level, and RMA number clearly on the outside of the packaging.


(c) Limitation of Liability. Company’s entire liability and exclusive remedy shall be the repair or replacement, at Company’s sole discretion, of the Hardware Products which do not meet the Limited Warranty, and which are returned freighted prepaid to the Company, or its authorized service center. Customer must provide the details of the warranty claim. Any products returned for other than warranty repair will be repaired at Customer’s expense and at Company then current professional service rates. Any replacement Products is warranted for ninety (90) days or the remainder of the original warranty period, whichever is longer.

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General

(a) Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and shall be governed by the internal laws of the State of California, excluding its conflict of law rules, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act are expressly disclaimed.

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Product Bulletin Number:EOL001

PICA8 Inc. announces the end-of-sale and end-of-life dates for the PICA8 P-3780, P-3920 and P-3290. The last day to order P-3780, P-3920 and P-3290 is September 30, 2015. Any customer with active service contract will continue to receive support from PICA8 until March 31, 2018.

Table 1 describes the end-of-life milestones, definitions, and dates for the Pica8 P-3780, P-3920 and P-3290 and Table 2 lists the affected product part numbers.

PICA8 recommends customers to migrate to the new PICA8 platforms -P-5101, P-3930, P-3922 and P-3293, which offer the latest in hardware component upgrades, price/performance, and flexibility. For details as to replacement, please visit http://www.pica8.com/white-box-switches/1gbe-10gbe-40gbe-white-box-switches.php

Table 3 provides relevant information for migrating from the PICA8 P-3780, P-3290 and P-3920 to P-5101, P-3930, P-3922 and P-3297.

Table 1. End-of-Life Milestones and Dates for PICA8 P-3780, P-3920 and P-3290.

Milestone Definition Date
Last Day of Order The last date to order the product. The product is no longer for sale after this date. September 30, 2015
End Of Support The last date to receive service and support for the product. After this date, Pica8 will not provide any support service for the product and the product becomes obsolete. March 31, 2018

Table 2. Product Part Numbers Affected by This Announcement

End-of-Sale Product Part Number Product Description
P-3780 Non-blocking 48x10GE SFP+ switch with dual redundant power supplies.
P-3920 Non-blocking 48x10GE SFP+ with 4X40GE ports of QSFP uplinks switch with dual redundant power supplies, extended range optics.
P-3290 Non-blocking 48xGE switch with 4x10GE SFP+ uplinks and embedded power supply.
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PRODUCT MIGRATION OPTIONS

Pica8 recommends P-3297, P-3922, P-3930, P-3922 and P-5101 for the replacement of the affected products.

Table 3. Comparing PICA8 Migration Options

Feature P-3297 P-3922 P-3930 P-5101
Description Non-blocking 48xGE ports with 4x10GE SFP+ uplinks, Enhanced TCAM, and dual redundant power supplies Non-blocking 48x10GE SFP+ with 4X40GE ports of QSFP uplinks switch with dual redundant power supplies Non-blocking 48x10G Base-T (RJ45) with 4X40GE ports of QSFP+ uplinks switch with dual redundant power supplies Non-blocking 40x10GE SFP+ with 8X40GE ports of QSFP uplinks switch with dual redundant power supplies
CPU PowerPC PowerPC PowerPC PowerPC
ASIC Triumph-2 Trident+ Trident+ Trident2
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PICA8™ Standard Software Maintenance and Support Agreement

These Software Maintenance and Technical Support terms and conditions (“Support Terms”) govern the provision by Pica8, Inc. (“Pica8”) of software maintenance and technical support services for Pica8’s Products (“Support”), as described below and purchased by an end user customer (“Customer”) from either Pica8 or Pica8’s authorized reseller (“Reseller”). As used in these Support Terms:.These Software Maintenance and Technical Support terms and conditions (“Support Terms”) govern the provision by Pica8, Inc. (“Pica8”) of software maintenance and technical support services for Pica8’s Products (“Support”), as described below and purchased by an end user customer (“Customer”) from either Pica8 or Pica8’s authorized reseller (“Reseller”). As used in these Support Terms:.

1. Definitions

(a) “Documentation” means the user manuals or other technical information Pica8 provides with the Software.

(b) “Error” means a reproducible defect in the Software when operated on a Supported Platform, which causes the Software not to operate substantially in accordance with the Pica8 published Documentation.

(c) “Error Correction” means a modification or patch that brings the Software into substantial conformance with the Pica8 published Documentation, or a procedure, routine
or other information that enables Customer to avoid the practical adverse effect of an Error.

(d) “Customer Contacts” means the individuals designated by Customer and agreed to by Pica8 who are authorized to contact Pica8 Support Representatives.

(e) “Maintenance and Support” or “Maintenance” means Pica8’s commercially available maintenance and support.

(f) “Maintenance Release” means an update to an existing version of the Software containing Error Corrections or minor functionality enhancements. A Maintenance Release is designated as a numbered service pack for the current version.

(g) “Maintenance Term” means any period during which Customer is entitled to receive Maintenance hereunder, including any renewals or extensions thereof.

(h) “New Version Release” means a new version of the Software containing new features or enhancements to functionality. A New Version Release is designated by an increase in the version number. e.g. from 2.5 to 2.6 or 3.0. A New Version Release only includes releases of the Software in a language included in Customer’s license configuration.

(i) “Pica8 Support Representatives” means individuals, either Pica8’s staffs or Pica8’s Authorized Support Providers, designated by Pica8, who are authorized to provide support to Customer’s Contacts and who will coordinate all of Customer’s Error submissions and support requests.

(j) “Products” means collectively, all Pica8 published family of products that off Maintenance and Support.

(k) “Releases” means collectively, Maintenance Release and New Version Release.

(l) “Severity Level” means the condition and impacts to business of operation resulted from the Error. The Severity Level is defined in Section 3(h).

(m) “Software” or “Licensed Software” means the proprietary Pica8 software licensed by Customer pursuant to Pica8 End User License Agreement (EULA).

(n) “Supported Platform” means Pica8’s Product family.

2. Standard Technical Support Service

(a) Contact Process:

   a. North America: Contact Pica8 during normal business hours between 8am and 5pm Pacific Standard Time, Monday to Friday, excluding local holidays, by phone. Number is listed on http://www.pica8.com/support.

   b. Asia Pacific Region: Contact Pica8 during normal business hours between 8am and 5 pm, Monday to Friday, excluding local holidays, Beijing Time by phone. Number is listed on
http://www.pica8.com/support.

   c. E-mail support is via support@pica8.com, 24×7 excluding local holidays.

(b) Support Level:

Maintenance Level Support Description
Standard All communications between Customer Contacts and Pica8 Support Representative can go through either phone call or emails.

3. Maintenance and Support

(a) Support and Maintenance Provided. During each Maintenance Term, Pica8 will provide the following Maintenance, subject to the procedures and limitations described herein: (i) clarifying and assisting in the operation of the features and functions of the Software; (ii) clarifying the Pica8 published Documentation; (iii) assisting in identifying and verifying the causes of suspected Errors; and (iv) providing Error Corrections.

(b) Self Help Support Resources. Pica8 will provide self-help resources, including (i) the manual and FAQ on Pica8 website and (ii) the community support through Pica8 forum.

(c) Contacting Pica8 Support Representatives. If Customer is unable to resolve an issue or question with respect to the Software using the self help resources described above, the Customer Contacts may contact a Pica8 Support Representative to receive support using one of the methods described below. Pica8 will provide support primarily in English, even though limited local language support might be provided through Pica8 Support Representative. Pica8 will not provide support to end users of the Software or to any person other than the Customer Contacts.

(i) Telephone Support. Pica8 will provide telephone support to the Customer Contacts during local business hours herein Section 2, based upon the billing address contained herein, or otherwise provided to Pica8. Pica8 will provide Customer with a list of local holidays and any reduced Support Hours on those holidays upon request.

(ii) Web Email Template. Pica8 will use commercially reasonable efforts to provide an acknowledgement to web email sent to support@pica8.com.

(d) Error Correction. When Customer reports an Error to Pica8, Customer should include a detailed description of the Error and the severity level determined in accordance with Section 3(e) below. When Pica8 receives notice of an Error, Pica8 will assign a problem tracking number to be included in all correspondence between Customer and Pica8 related to the Error and, after Pica8’s e-mail acknowledgement described in Section 3(c)(ii), Pica8 will provide a response in accordance with the severity levels and response times identified in Section 3(e). Thereafter, Pica8 will use commercially reasonable efforts to provide an Error Correction. The Error Correction may require that Customer install the latest Maintenance Release for the supported version of the Software on which Customer reported the Error. An Error Correction may require multiple contacts and off-line research. The Error Correction, when completed, may be provided in the form of a Software patch consisting of sufficient programming and operating instructions to implement the Error Correction, which will be provided to Customer via email, download or other electronic means.

(e) Response Times. Pica8’s response to an Error depends on Severity Level of the Error as determined in this Section (h). For each level of severity, Pica8 Support Representatives will use commercially reasonable efforts to respond, within the times set forth in this Section (h). Response time is the time from Pica8’s receipt of notice of the Error until Pica8 contacts the Customer Contact reporting the Error to begin resolution efforts, not the time to deliver an Error Correction. Pica8 will respond to an Error at all severity levels set forth in this Section (h).

(f) Escalation Procedure. An escalation occurs when an open issue becomes critical and requires Pica8’s escalation procedure, which consists of the following: (i) when escalation of a critical case becomes necessary, Customer will contact a Pica8 Support Representative for more information using the telephone or e-mail detailed on the Pica8 Support Web Site; (ii) once the Customer is connected with a Pica8 Support Representative, Customer must provide its name, case ID, and state that an escalation is required; (iii) the Pica8 Support Representative will contact the support manager on duty and the support manager will set up an action plan that is required in order to progress the case and will monitor its execution on a regular basis involving the Pica8 Support Representative in charge.

(g) Exclusions from Maintenance Program. Pica8 is not responsible or liable for causes external to the Software (“Excluded Services”), including but not limited to: (i) Customer’s failure to incorporate Releases; (ii) installation of the Software or any New Version Releases not in accordance with the Documentation provided with the Software or New Version Releases; (iii) Customer’s use of the Software with any software or hardware other than the Supported Platform; (iv) problems resulting from use of the Software in a manner not permitted pursuant to Customer’s license; (v) modifications, alterations, or additions to the Software by parties other than Pica8 (including without limitation, modifications, alterations, or additions to the Software made by Customer); or (vi) damage from any source other than Pica8 including but not limited to water, humidity, fire, power surges, computer viruses, and accidents. Any maintenance or services required to fix the Excluded Services will be billed to Customer on a time-and-materials basis in accordance with Pica8 then current rates. Such services shall be set forth on a mutually agreed upon professional services agreement. Maintenance does not include maintenance in connection with or correcting Errors arising out of or related to interoperability with 3rd-party switches. Pica8 may, but is not required to, provide Error Corrections for such Errors at Pica8 then current time and materials rates. Maintenance does not include Software installation, configuration or services provided on-site at Customer’s location. If Pica8 is required or requested to travel to Customer’s facilities, any services will be provided at then current time and materials rates and Customer will reimburse Pica8 for all reasonable travel expenses, including meals and lodging. Maintenance does not include problems or errors in modifications to the Software Pica8 provides as a work product pursuant to a separate professional services engagement. Pica8 is not responsible for restoring lost data or damage to Customer’s configuration that result from Customer’s actions. If Customer desires to purchase upgrade services or other professional services from Pica8 outside the scope of the Maintenance in this Agreement, Pica8 will provide such professional services to Customer for a charge as set forth in a mutually agreed upon professional services agreement.

(h) Severity Level and Response Time

Severity Level Severity Level Description Initial Response Time Update Frequency Estimated Resolution After Initial Response
Severity 1 Emergency— Customer’s network environment is “down”, or there is a critical impact to the Customer’s business operation Within 1 business hour Every 4 hours Within 24 hours, fix problem or provide workaround. Work to downgrade to Severity2
Severity 2 High— Operation of an existing network or environment is severely degraded, or significant aspects of Customer’s business operation are negatively affected by inadequate performance Within 4 business hours M-F 8-5 local time; otherwise next business day Every 2 days (or less) Within 48 hours, fix problem or provide workaround. Work to downgrade to Severity 3.
Severity 3 Medium— Operational performance of Customer’s network or environment may be impaired while most business operations remain functional. Within 1 business day At least once per week Within an average of 30 days, provide a solution or a statement regarding the disposition of the problem.
Severity 4 Minor— Customer requires information or assistance with Pica8 product capabilities, installation, or configuration (or new feature request). There is little or no effect on Customer’s business. Within 1 week Response within 30 days of escalation No guaranty for product modification or new feature requests

4. Customer’s Responsibilities

(a) Supported Platform and Operations. Customer is responsible for undertaking the proper supervision, control and management of Customer’s use of the Software including, but not limited to: (i) providing, maintaining and assuring proper configuration of the Supported Platform; and (ii) following industry standard procedures for back-up of configuration.

(b) Assistance in Providing Maintenance. Customer will provide reasonable assistance to Pica8 in determining and resolving Errors Customer reports. Error determination activities may include performing network traces, capturing error messages, collecting configuration information and other similar activities to allow Pica8 to reproduce the Error. Resolution activities may include access to Customer’s personnel and/or remote access to the Supported Platform. Customer agrees to allow Pica8 to use remote access tools, with the participation and under the supervision of a Customer Contact, to access the Software in the Supported Platform and modify its configuration as part of Pica8 Error determination and resolution activities. Pica8 may not be able to provide Customer with an Error Correction without such remote access. Customer is responsible for performing activities to implement Error Corrections Pica8 provides and for responding in a timely manner to requests for information by a Pica8 Support Representative. Any information Customer provides Pica8 in connection with the Maintenance process that Customer designates as confidential will be used only to resolve reported Errors and will not be disclosed to anyone other than Pica8 personnel involved in resolving the Error. As part of Pica8’s Error resolution process, information Customer provides to Pica8 may be made available to Pica8 employees in foreign countries, unless Customer notifies Pica8 otherwise in writing when providing Pica8 with such information.

(c) Designation of Support Contacts. Customer will designate up to two individuals as the Customer Contacts for receiving support hereunder and notify Pica8 of the Customer Contacts by sending a product registration form to registration@pPica8.com. Pica8 product registration form can be downloaded from Pica8 web site www.pica8.com/support/registration. Customer may change the Customer Contacts by notifying Pica8, but may not have more than the number of Customer Contacts set forth above at any one time. Each Customer Contact may not be changed more than once in a thirty (30) day period.

(d) Training. Customer is responsible for the proper training of the Customer Contacts and all other appropriate personnel in the operation and use of the Software and the Supported Platform.

5. New Releases of the Software

(a) Maintenance Releases Provided with Maintenance and Support. If and when available, Pica8 will provide to Customer Maintenance Releases that Pica8 makes generally available to customers who have purchased Maintenance during the Maintenance Term at no additional charge. Any Release is part of the Software and subject to the terms and conditions of this Agreement. The designation of a Software release as a Maintenance Release or a New Version Release will be made by Pica8 at Pica8’s reasonable discretion.

(b) Maintenance and Support of Prior Releases. Pica8 will provide Maintenance and Support as described herein for the most current Maintenance Releases made with respect to the current New Version Release and the last two New Version Releases immediately preceding that release.

(c) Installation and Configuration of New Releases. Maintenance and Support does not include the installation or configuration of any Releases. Any services to be provided in connection with the installation or configuration of Releases will be provided for a mutually agreed upon fee as a work product pursuant to a separate professional services agreement.

(d) Migration of Customizations and/or Modifications. Any Customer’s Customization and/or Modifications without prior Authorization of a Pica8 Officer are excluded from Pica8 Standard Maintenance and Support. Any services to be provided in connection with the migration of customizations and/or modifications to Releases shall be provided for in a mutually agreed upon fee as a work product pursuant to a separate professional services agreement.

6. Maintenance Fees

Annual Maintenance fees for any Maintenance Term are based on Pica8’s then current prices and, subject to Section 7, for any renewal Maintenance Term upon expiration of the then current Maintenance Term. Fees for additional services not included in Maintenance or expenses incurred will be invoiced monthly at the end of the month in which such services are provided or expenses incurred.

7. Term, Renewal and Termination

(a) Initial Maintenance Term and Renewal. The initial Maintenance Term shall begin and end on the dates set forth in the applicable purchase order. Upon expiration of the initial Maintenance Term, a new Maintenance Term, for a consecutive twelve (12) month period (“Renewal Term”), shall automatically begin; provided that (i) Pica8 still offers Maintenance for the Software under the terms of this Agreement at the time of renewal; (ii) Customer has not given Pica8 written notice that Customer declines to renew Maintenance at least thirty (30) days prior to the end of the initial Maintenance Term; and (iii) Customer pays the then current list price for the Maintenance fee for the Renewal Term. Pica8 will provide Customer with written notice of the upcoming expiration date, which shall include notice of any price increase for the upcoming Maintenance Term, if applicable. The failure to renew Maintenance shall not affect Customer’s licenses to the Software. Notwithstanding the above, Pica8 may terminate Maintenance with reasonable prior written notice if Pica8 no longer supports the Software. Pica8 will refund any pre-paid but unused Maintenance Fees in the event Pica8 so terminates the Maintenance.

(b) Termination of Maintenance and Support. Either party may terminate the Maintenance of the Software upon thirty (30) days written notice to the other party of a material breach by the other party of its obligations set forth in this Agreement, if the breach is not cured within that thirty (30) day period. If Pica8 terminates Maintenance as a result of Customer’s uncured breach, Pica8 will retain all Maintenance fees paid. A material breach includes but is not limited to a failure to pay. If Customer terminates Maintenance and Support as a result of Pica8’s uncured breach, Pica8’s sole and exclusive obligation will be to promptly refund that portion of the Maintenance and Support fee actually paid by Customer that is proportional to the percentage of the Maintenance Term remaining at the time termination is effective. The termination of Maintenance and Support shall not affect Customer’s licenses to the Software.

(c) Reinstatement of Maintenance Services. If Customer has terminated or elected not to renew Maintenance and Support, Customer can elect to reinstate Maintenance and Support if Pica8 still offers Maintenance and Support for the Software and if Customer pays a fee equal to (i) the Maintenance and Support fees for the period when Customer did not receive Maintenance and Support and (ii) the Maintenance and Support fee for the current Maintenance Term.

8. Limitation of Liability

(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PICA8 OR PICA8’S SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS FORESEEABLE, EVEN IF PICA8 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. Some jurisdictions do not allow limitation or exclusion of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer. THE LIMITATIONS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL PICA8’S AGGREGATE CUMULATIVE LIABILITY FOR ANY DAMAGES, DIRECT OR INDIRECT, ARISING FROM, IN CONNECTION WITH, OR RELATED TO THE SOFTWARE, OR ANY WORK PRODUCT EXCEED THE AMOUNT PAID HEREUNDER WITH RESPECT TO SUCH SOFTWARE OR WORK PRODUCT WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, PICA8 TOTAL LIABILITY ARISING FROM, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY PICA8 FROM CUSTOMER UNDER THIS AGREEMENT.

9. General

(a) Warranty. Pica8 warrants that the support service will be performed in a professional manner. Pica8’s entire liability and Customer’s exclusive remedy shall be the repair or replacement, at Pica8’s sole discretion, of the Hardware and/or Software which do not meet the specifications stated in the Pica8 end user documentation. Any replacement Products are warranted for the remainder of the original warranty period or for ninety (90) days, whichever is longer.

THE WARRANTY AS SET FORTH HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PICA8 SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL DAMAGES.

(b) Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and shall be governed by the internal laws of the State of California, excluding its conflict of law rules, and applicable federal law. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act are expressly disclaimed.

Pica8, Inc.

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