Pica8 End User License Agreement (EULA)
Updated March 13, 2023
Please read this End User License Agreement (“EULA”) carefully. By agreeing to this EULA or by downloading, installing, copying or otherwise using the Software (as defined below), you agree to be bound by this EULA. If you are an individual acting on behalf of an entity, you represent that you have the authority to bind the entity to this EULA, and all references to “you” in this EULA mean that entity. If you do not have the authority to enter into this EULA or you do not accept its terms, you must not download, install, copy or use the Software.
- “Authorized Source” means an authorized Pica8 reseller or OEM.
- “Device” means the device on which the licensed Software will run, as specified in your order.
- “Documentation” means the user guides, specifications for the Supported Platform, and other technical information that Pica8 makes available at https://docs.pica8.com (or a successor website).
- “Intellectual Property Rights” means all patent, copyright, trademark, trade secret, trade dress, trade names, utility models, mask work, moral rights, rights of attribution or integrity service marks, author’s rights, database rights, registered design rights and any applications for the protection or registration of these rights, or other intellectual or industrial property rights or proprietary rights, howsoever arising and in whatever media, whether or not registered (including all claims and causes of action for infringement, misappropriation or violation and all rights in any registrations and renewals), worldwide and whether existing now or in the future.
- “Pica8” means Pica8, Inc.
- “Pro-Rata Refund” means: (i) in the case of a perpetual license, a refund of the purchase price for the affected Software, pro-rated on a five-year straight-line amortized basis; and (ii) in the case of a subscription license, a refund of the pro rata amount of any prepaid subscription fees for the remaining portion of the then-current subscription term for the affected Software.
- “Software” means Pica8 software applications, including object code, libraries, sample code, utility programs and programming code, and the Documentation for such software applications.
- “Supported Platform” means the Pica8 network operating system, Pica8 network automation software and/or compatible hardware (as the case may be) specified in the Documentation.
- “Third-Party Components” and “Third-Party Programs” have the meaning given in Section 8 of this EULA.
- “Updates” means bug fixes, patches, maintenance releases, version releases or other updates or upgrades for the Software.
- Scope and Applicability. This EULA governs the license and use of Software.
This EULA does not provide you with any right to receive Updates or any services for the Software. You are entitled to receive maintenance and support services, including Updates (when and if available) that Pica8 makes generally available, only if you have a then-current subscription for Pica8 maintenance and support services for all of the Devices for which you have purchased Software licenses and paid the applicable maintenance and support fees. The Pica8 provides maintenance and support in accordance with the Pica8 Standard Software Maintenance and Support Agreement located at https://www.pica8.com/support/warranty-and-agreements/. Any provided Updates will constitute Software under this EULA.
Subject to your compliance with this EULA, including payment of the applicable fees, Pica8 grants to you, during the applicable license term, a non-exclusive, non-transferable (except as provided in Section 10 of this EULA), revocable license to install and use, on the one Device specified in your order, on a Supported Platform and in accordance with the Documentation, the Software whose license you purchased from an Authorized Source or to which you were otherwise given registered access by Pica8. If you downloaded the Software for free or for trial, evaluation, testing or demonstration purposes, you may use the Software only for such purpose and subject to any associated limitations (e.g., on number of ports). Pica8 reserves all rights not expressly granted in this EULA. All Software is licensed, not sold, and any reference to “purchase” or “sale” or similar terms in this EULA or otherwise are references to the purchase and sale of the licensed rights and not of the Software.
Unless otherwise provided in a written agreement between you and Pica8, this license is for your internal use only and does not include any right to sublicense, resell, distribute or, except as provided in the next sentence, otherwise provide the Software or access to it to third parties. The License may be exercised on your behalf by your contractors, service providers and affiliates that are authorized to use the Software or the Device for your benefit. You are responsible for their compliance with this EULA.
- Restrictions. You agree that you will not (or authorize or allow any third party to):
- use Software licensed for a specific Device on a different device (except as provided in Section 10 of this EULA);
- bypass, disable, circumvent or remove any form of copy protection, encryption, security or digital rights management or authentication mechanism for the Software or use the Software with any authorization code, serial number, or other copy protection device not supplied by an Authorized Source;
- reverse engineer, decompile, disassemble (except to the extent specifically required by applicable laws) or otherwise attempt to derive source code, underlying ideas, algorithms or structure of Software provided to you in object code form;
- modify, translate or prepare derivative works of the Software;
- copy the Software for any purpose other than back up and disaster recovery;
- transfer, sell, assign, rent, loan, lease, sublicense, distribute, or otherwise make available the Software or its functionality available to a third party, except as expressly authorized by this EULA or a separate written agreement with Pica8;
- disclose any information relating to the performance or operation of the Software (including any benchmarking or other testing results) to any third party, except with the written consent of Pica8;
- remove, alter, cover or obscure any product identification, mark or proprietary notice that appears on or with the Software or any copy thereof, except as expressly authorized by a separate written agreement with Pica8;
- receive, use, transfer, transmit, export or re-export the Software in violation of any applicable law (including export control or sanctions laws) or in any way that would cause Pica8 to violate any applicable law;
- use the Software to develop or sell, or assist a third party in developing or selling, competing products or technology;
- use the Software with any life-critical application or system or other application or system whose failure could reasonably be expected to threaten or result in personal injury, death, or catastrophic loss (such as medical, life support, navigation, nuclear, avionics, or military applications), except as authorized in a separate written agreement with Pica8; or
- access or use the Software in any manner that would cause the Software to become subject to any open-source software license that would require the Software to be disclosed or distributed in source code form, be licensed for the purpose of making derivative works, or be redistributable at no charge.
- Term and Termination.
- Term of EULA. This EULA becomes effective on the date you accept this EULA (including by click-through action) or download, install, copy or otherwise use the Software and will continue in effect until the end of the license term, as follows: (i) if you purchased a perpetual license, the end of the license term is the date you last access or use the Software on the Device (unless the license is transferred to another Device as provided in Section 10 of this EULA), unless this EULA and your license are earlier terminated as provided in subsection (c) of this Section; and (ii) if you purchased a subscription license, the end of the license term is the date of expiration of your final subscription term, unless this EULA and your subscription are earlier terminated as provided in subsection (c) of this Section.
- Subscription Terms. The initial term of a subscription shall be as specified in the applicable order form. Unless otherwise specified in the order form, each subscription will automatically renew for successive additional one (1)-year periods, unless (i) you give Pica8 notice of non-renewal before the renewal date or (ii) Pica8 gives you notice of non-renewal at least thirty (30) days before the renewal date. Pica8 will notify you reasonably in advance of the renewal date if the fees will increase. The new fees will apply for the upcoming renewal term unless you notify Pica8 in writing, before the renewal date, that you do not accept the fee changes, in which case your subscription will terminate at the end of the then-current subscription term.
- Suspension; Termination for Breach.
- If you fail to pay license fees within five (5) business days after their due date or you are otherwise in material breach of this EULA, then Pica8 may, in its sole discretion, suspend your license grant for the affected Software, in addition to any other remedies Pica8 may have at law or equity.
- Either you or Pica8 may terminate this EULA upon written notice to the other party if the other party breaches any other term of this EULA and, if such breach is capable of cure, fails to cure such breach within thirty (30) days after written notice thereof; provided, however, that the cure period for payment default is five (5) business days. For the avoidance of doubt, violations of Section 4 are breaches that are not capable of cure.
- If you have a subscription license, Pica8 may also terminate this EULA if you become the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if that petition or proceeding is not dismissed with prejudice within sixty (60) days after filing, or if you cease to do business.
- Effect of Termination. Upon the expiration or termination of this EULA or your right to use particular Software, (i) your right to use the Software will terminate, you must immediately stop using the Software, and Pica8 has the right to disable your access and use of the Software; and (ii) you shall verify to Pica8, using the method indicated by Pica8 that you have deleted, uninstalled, and/or deactivated the Software in your systems. If this EULA is terminated for your material breach and you have a subscription license, any amounts owed to Pica8 become immediately due and payable. If you terminate this EULA due to Pica8’s material breach, Pica8 will provide you a Pro-Rata Refund. All provisions of this EULA that reasonably should survive termination shall so survive.
- Fees; Taxes.
- Fees. Fees for your use of the Software and/or any related services (such as maintenance and support) are set out in your order with your Approved Source. To the extent permitted by law, orders are non-cancellable and, except as expressly provided in this EULA, fees paid for a subscription term are non-refundable. You have no right of set-off or deduction except as expressly agreed by Pica8 in writing. For Software licenses or services purchased on a subscription basis, Pica8 reserves the right to increase the applicable fees payable for any renewal subscription term. All payments shall be made in United States dollars.
- Charge Authorization. If you pay with a credit card or other online payment method, on the applicable payment date Pica8 will charge the payment method you provide. If Pica8 cannot charge your payment method for any reason (such as card expiration or insufficient funds), (i) you will remain responsible for any uncollected amounts and (ii) if you update your payment information, Pica8 will attempt to charge the payment method again. In accordance with applicable law, Pica8 may update payment method information notified to Pica8 by you or your financial institution. You authorize Pica8 to charge and update your payment method as described in this clause.
- Late Payments. If Pica8 cannot charge your payment method for any reason (such as card expiration or insufficient funds), or if you are an invoiced customer and Pica8 has not received payment within five (5) days after the due date, (i) interest shall accrue on past due amounts at the rate of 1.5% per month or the highest rate of interest allowed by law, whichever is less; and (ii) you agree to reimburse Pica8 for reasonable costs of collection, including but not limited to reasonable collection fees and attorneys’ fees and expenses.
- Taxes. You are responsible for payment of all sales, use, value-added (VAT), ad valorem, excise or other governmental taxes, duties, levies, tariffs, or transactional charges (other than taxes on Pica8’s net income) and any related interest and/or penalties. If Pica8 has the legal obligation to pay or collect taxes for which you are responsible, Pica8 will invoice you for such taxes and you shall pay them unless you provide Pica8 with a valid tax exemption certificate.
- Intellectual Property Rights. The Software, related trademarks and logos, and all related Intellectual Property Rights are and will remain the sole and exclusive property of Pica8 and Pica8’s licensors and are protected under copyright, trademark and other laws. Your rights are limited to those expressly granted in this EULA and nothing in this EULA transfers or conveys ownership of the Software or any Intellectual Property Rights.
- Third-Party Software.
- Components. The Software may include or incorporate software components or other technology of third parties (“Third-Party Components”). Neither Pica8 nor any other Authorized Source is responsible for Third-Party Components, except for any support for Third-Party Components provided under the terms of an applicable maintenance and support program. Each Third-Party Component is governed by its own pass-through license terms.
- Programs. In addition, Pica8 may distribute third-party software programs with the Software that are not included or incorporated in the Software, which programs are not required to run the Programs and are provided as a convenience to you (“Third-Party Programs”). Neither Pica8 nor any other Authorized Source is responsible for Third-Party Programs. Each Third-Party Program is governed by its own license terms. If you do not agree to those license terms, then you must not install the Third-Party Programs.
- Feedback. To the extent you provide Pica8 or other Authorized Source with any suggestions, feature requests, or other feedback about the Software, you irrevocably assign and shall assign to Pica8 all right, title and interest you may have in and to such feedback without compensation or other obligation to you, and to the extent such assignment is not valid or complete, you grant to Pica8 an exclusive, royalty-free, fully-paid, transferable, sublicensable, worldwide, irrevocable and perpetual license to use and practice such feedback in any manner.
- Transfer; Assignment.
- To a Replacement Device. The Software is licensed for a specific Device. If that Device fails, you may transfer your license grant to the Software to an identical Device and install and use the Software on that replacement Device for the remaining portion of the license term, using the replacement license key that Pica8 will generate for you. You may not otherwise transfer the license to the Software to, or install or use the Software on, any device other than the specific Device for which it is licensed, unless otherwise agreed in writing by the Company (e.g., in connection with the purchase of certain product bundles).
- To a Transferee. You may assign your rights and obligations under this EULA and the license grant to the Software granted to you by this EULA to a person or entity that acquires the Device on which the Software runs. In addition, either you or Pica8 may assign this EULA to a person or entity or that acquires all or substantially all of the assets of the assigning party. In either case, the assignment is conditioned on the following: (i) the assigning party must provide written notice to the other party of the assignment and (ii) the assignee must agree in writing to be bound by this EULA.
- Limited Warranty.
- Limited Warranty. Pica8 warrants that (i) it has used commercially reasonable means to protect against the introduction of viruses by the Software to your computer system; and (ii) to Pica8’s knowledge and except as disclosed in the Documentation or this EULA, the Software contains no time bombs or other codes or instructions that may be used by Pica8 to access, modify, delete or disable your computer systems.
- Exclusive Remedy. Your exclusive remedy for any breach of the foregoing warranties shall be, at Pica8’s election: (A) replacement of the affected Software or (B) a Pro-Rata Refund for the affected Software. If Pica8 provides a Pro-Rata Refund, your license to the affected Software will immediately terminate and Section 5(d) of this EULA will apply.
- Exclusions. The foregoing warranties do not apply (i) if the Software was not downloaded from Pica8’s official web site; (ii) if the Software has been modified by anyone other than Pica8 or its authorized representative; (iii) if the Software or the Device has not been installed, operated, repaired, or maintained in accordance with the Documentation or has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (iv) to any Software licensed for, trial, evaluation, testing or demonstration purposes; (v) to any Software for which an Approved Source does not receive a license fee; and (vi) to any Software supplied by any party that is not an Approved Source.
- Disclaimer. Except for the foregoing warranties, the Software is provided “as is” and “with all faults” and Pica8 disclaims all other warranties, whether oral or written, express or implied, including the implied warranties of merchantability and fitness for a particular purpose and any warranty of operability, quality, non-infringement or absence of defects. Pica8 does not warrant that the Software will meet your requirements, that its operation will be secure, uninterrupted or error-free, or that all errors will be corrected. Some jurisdictions do not allow the limitation of certain warranties, so this limitation may not apply to you if you are a consumer.
Pica8 will defend any third-party claim against you alleging that your use of the Software in accordance with the Documentation and this EULA infringes any copyright, trade secret or U.S. or Canadian patent (an “Infringement Claim”), and will indemnify you against the final judgment (including damages, fines, penalties, interest, fines, fees, penalties, and attorneys’ and fees) entered by a court of competent jurisdiction or any settlement in connection with such Infringement Claim, provided that you: (i) promptly notify Pica8 in writing of the Infringement Claim, (ii) allow Pica8 sole control of the defense of the Infringement Claim and any subsequent appeal and (iii) fully cooperate with Pica8 in the defense. You may retain your own legal representation at your own expense. Pica8 does not have any obligation to reimburse you for attorneys’ fees and costs, whether incurred before or after Pica8’s receipt of notification of the Infringement Claim.
In the event an injunction is obtained against your use of the Software by reason of an Infringement Claim or Pica8 believes the Software is likely to become the subject of an Infringement Claim, Pica8 may, at its own expense and at its election: (A) procure for you the right to continue to use the Software or (B) replace or modify it so that it becomes non-infringing, with materially equivalent functionality. If Pica8 determines that neither of the above options are available on terms that are commercially reasonable for Pica8, then Pica8 may terminate your license to the Software and give you a Pro-Rata Refund. If Pica8 provides a Pro-Rata Refund, your license to the affected Software will immediately terminate and Section 5(d) of this EULA will apply.
The foregoing obligations do not apply to the extent the alleged infringement is caused or alleged to be caused by (i) modification of the Software other than by Pica8 or its authorized representative; (ii) combination of the Software with any software, products, services or materials not contemplated by the Documentation or approved by Pica8 in writing, if the infringement would not have occurred but for such combination; (iii) use of the Software other than as specified in the Documentation or this EULA; (iv) Software not downloaded from Pica8’s official web site; (v) Software licensed for beta, trial, evaluation, testing or demonstration purposes; (vi) Software for which an Approved Source does not receive a license fee; and (vii) Software supplied by any party that is not an Approved Source.
- Limitation of Liability.
- In no event shall Pica8 be liable for cost of cover or for any incidental, special, indirect, consequential or punitive damages, for loss or corruption of data or interruption or loss of business, or for loss of revenues, profits, goodwill or anticipated sales or savings. 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 aggregate liability to you exceed: (i) if you have a perpetual license, the purchase price for the Software license; (ii) if you purchased a subscription license, the fees you paid for the Software license during the 12-month period immediately preceding the event giving rise to the claim; and (iii) if you licensed the Software on a beta, trial, evaluation, testing or demonstration basis, $100.
- The foregoing limitations of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement, or otherwise, and even if Pica8 has been advised of the possibility of such damages. Nothing in this EULA limits or excludes any liability that cannot be limited or excluded under applicable law. This limitation of liability is cumulative and not per incident.
- Your Account. You must register with Pica8 and create an account in order to download the Software and generate license keys through Pica8’s online portal. You shall provide accurate and complete information for your account and ensure that such information remains materially accurate and complete. You are responsible for maintaining the confidentiality of your account and account credentials and for all activities that occur under your account, whether or not authorized by you.
- Your Additional Responsibilities. You are responsible for the proper supervision, control, and management of your use of the Software, including, but not limited to (i) ensuring that the Software and the Supported Platform are compatible with your business and systems requirements; (ii) providing, maintaining and assuring proper configuration (and backup of the configuration) of the Supported Platform; and (iii) training your personnel with respect to the Software and the Supported Platform.
- Publicity. You agree that Pica8 may identify you as a customer, and display your name, logo (if any), city, state, country and website address in connection with such identification, on Pica8’s website and in other online and offline marketing materials. Any goodwill arising from the use of your name, logo or other trademarks will inure to you, the owner.
- Export Control.You shall not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the 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 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.
- Government End Users.If the Software is supplied to the United States government, the 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 Software are as provided in clause 52.227-19 of the FAR.
- Non-Pica8 Purchases. If you purchase a license to the Software from an Approved Source other than Pica8, the terms of this EULA apply to your use of the Software and prevail over any inconsistent provisions in your agreement with such Approved Source.
- Force Majeure. Except for the payment of monies due, a party shall be excused from failure or delay in performing its obligations under this EULA due to natural disasters, power outages, denial of service attacks, weather, strikes, riots, war, governmental action or other reasons beyond its reasonable control.
- Notices. All legal notices required under this EULA must be in writing and delivered by electronic mail, overnight delivery service, or certified mail. Pica8’s email address for notices is legal@Pica8.com and its physical address is 1032 Elwell Court, Suite 105, Palo Alto, CA 94303. You must email to legal@Pica8.com a copy of any notice that you send to Pica8’s physical address. Your address(es) for notices will be those in your Software order (or such other address as you notify Pica8 in accordance with this Section).
- Governing Law; Venue. 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 United Nations Convention on the International Sale of Goods will not apply. You and Pica8 irrevocably submit to the exclusive jurisdiction of the courts located in San Santa Clara County, California.
- Remedies; Waiver; Severability. Except as expressly set forth in this EULA, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this EULA or otherwise. The failure by either party to enforce any provision of this EULA will not constitute a waiver of future enforcement of that or any other provision. If any provision of this EULA is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This EULA does not grant any right or cause of action to any third party.
- Independent Contractors. You and Pica8 are independent contractors and do not have any relationship of partnership, joint venture, employment, franchise, or agency. Neither party has the power to bind the other or incur obligations on the other’s behalf.
- Modifications. Pica8 may update this EULA from time to time by posting the updated EULA on its website. Your continued use of the Software constitutes your acceptance of such changes. No other amendment to or modification of this EULA will be binding unless in writing and signed by Pica8.
- Complete Agreement.This EULA, together with the applicable Authorized Source order form for the Software and any other agreement executed between you and Pica8 with respect to the purchase of the Software, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings with respect to its subject matter, oral or written, and any past dealings or industry customer. Any terms or conditions contained in a purchase order or any other ordering document issued by you are void.
Pica8 Limited Hardware Warranty
“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.
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.
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.
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.
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.
(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.
(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.
Pica8 Standard Software Maintenance and Support Agreement
This Standard Software Maintenance and Support Agreement (these “Support Terms”) govern the provision by Pica8, Inc. (“Pica8”) of software maintenance and technical support services for Products purchased by an end user (“Customer”) . As used in these Support Terms:
(a) “Documentation” means the user guides, Supported Platform specifications, and other technical information Pica8 makes available at https://docs.pica8.com (or a successor website) for the Software.
(b) “Error” means a reproducible defect in the Software when operated on a Supported Platform that causes the Software to not operate substantially in accordance with the applicable Documentation.
(c) “Error Correction” means a modification or patch that brings the Software operation into substantial conformance with the Documentation, or a procedure, routine or other information that enables Customer to avoid the practical adverse effect of an Error.
(d) “Customer Contact(s)” means the individual(s) who contact Pica8 Support Representatives for Maintenance and Support. Pica8 may, in its discretion, require Customer to designate Customer Contacts as described in Section 4(c) below.
(e) “EULA” means the Pica8 End User License Agreement applicable to Customer’s license of the Software.
(f) “Maintenance and Support” means Pica8’s commercially available maintenance and support services for the Products, which will be provided in accordance with these Support Terms.
(g) “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.
(h) “Maintenance Term” means the applicable period during which Customer is entitled to receive Maintenance and Support hereunder, including any renewals or extensions thereof.
(i) “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 includes only releases of the Software in a language included in Customer’s license configuration.
(j) “Pica8 Support Representatives” means the employees and contractors of Pica8, its affiliated companies or its support providers who provide Maintenance and Support to Customers on behalf of Pica8.
(k) “Products” means the Pica8 software applications for which Pica8 offers Maintenance and Support.
(l) “Releases” means, collectively, Maintenance Releases and New Version Releases.
(m) “Severity Level” means the condition and impacts to business of operation resulted from an Error. The Severity Levels used for purposes of Maintenance and Support are defined in Section 3(d).
(n) “Software” means the proprietary Pica8 software applications licensed by Customer pursuant to the EULA.
(o) “Supported Platform” means the network operating system and network automation software products offered by Pica8 and their compatible hardware as specified in the Documentation.
2. Obtaining Support
(a) Contact Information and Support Hours:
· North America / Worldwide Phone Support: Phone support is available between 8am and 5pm Pacific Time, Monday to Friday, excluding local holidays. The phone number is listed at https://www.pica8.com/support. Pica8 will email Customer an acknowledgement of receipt of a support request made by telephone.
· Asia Pacific Region Phone Support: Phone support is available between 8am and 5 pm Beijing Time, Monday to Friday, excluding local holidays. Number is listed on https://www.pica8.com/support.
· E-mail Support: Emails may be sent to email@example.com 24×7. Pica8 will provide an acknowledgement of receipt of emails. Pica8 Support Representatives will respond during their local business hours, excluding local holidays.
(b) Support Level:
If Customer is unable to resolve an issue or question with respect to the Software using the self-help resources described in Section 3(b) below, a Customer Contact may contact a Pica8 Support Representative to receive support. Pica8 will provide support primarily in English.
All communications between Customer Contacts and Pica8 Support Representatives will be through phone or email as described in Section 2(a).
3. Services Provided
During each Maintenance Term, Pica8 will provide the following Support and Maintenance services, subject to the procedures and limitations described in these Support Terms:
(a) Customer Assistance. Pica8 will (i) provide information about features and functions of the Software; (ii) clarify the Documentation; (iii) assist Customer in the installation, configuration or operation of the Software; and (iv) assist Customer in identifying and verifying the causes of suspected Errors.
(b) Self Help Support Resources. Pica8 will provide self-help resources, including the Documentation and FAQs, on the Pica8 website.
(c) Error Corrections. When a Customer Contact reports an Error to Pica8, the Customer Contact should include a detailed description of the Error and the perceived Severity Level. Pica8 will assign a problem tracking number to be included in all correspondence between Customer and Pica8 related to the Error. Thereafter, Pica8 will use commercially reasonable efforts to provide an Error Correction as described in Section 3(d). An Error Correction may require multiple contacts and off-line research. Error Corrections will be provided to Customer via email, download or other electronic means. Any Error Correction is part of the Software and subject to the terms and conditions of the EULA and these Support Terms.
(d) Severity Level and Response Time
Pica8’s initial response times for Errors depends on the Severity Level of the Error. For each Severity Level, Pica8 Support Representatives will use commercially reasonable efforts to meet the response, update and resolution times set forth below. For clarity, the initial response time is the time from Pica8’s receipt of notice of the Error from a Customer Contact until Pica8 contacts that Customer Contact to begin resolution efforts, not the time to deliver an Error Correction (if any).
Severity Level Description
Initial Response Time*
Target Resolution Time After Initial Response*
Emergency— Customer’s network environment is “down”, or there is a critical impact to Customer’s business operation
Within 2 hours
Every 4 hours
Within 24 hours, fix problem or provide workaround. Work to downgrade to 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 hours
At least every 2 days
Within 48 hours, fix problem or provide workaround. Work to downgrade to Severity 3
Medium— Operational performance of Customer’s network or environment may be impaired while most business operations remain functional.
Within 1 day
At least once per week
Within 30 days, provide a solution or a statement regarding the disposition of the problem
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
Depends on request
Depends on request
* Hours/days refer to business hours/days (8-5, Monday through Friday, excluding holidays, local time of the Pica8 Support Representative).
(g) Exclusions from Maintenance Program.
i. Pica8 is not responsible or liable for, and is not required to provide Error Corrections or other Maintenance and Support services for problems arising out of or related to causes external to the Software or caused by parties other than Pica8, including but not limited to Customer’s failure to incorporate Releases; installation of the Software or any New Version Releases not in accordance with the Documentation; use of the Software with any software or hardware other than a Supported Platform; use of the Software in a manner not permitted under the EULA; modifications, customizations or additions to the Software by parties other than Pica8 (including without limitation, modifications, alterations, or additions to the Software made by Customer); damage from any source other than Pica8, including but not limited to water, humidity, fire, power surges, computer viruses or malware, and accidents; or Customer’s violation of the EULA or these Support Terms (including but not limited to Customer’s failure to provide assistance as required under Section 4(b) of these Support Terms).
ii. Maintenance and Support does not include services in connection with, including correcting Errors arising out of or related to, interoperability with 3rd-party switches.
iii. Maintenance and Support does not include Software installation, configuration or services provided on-site at Customer’s location. If Pica8 travels 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.
iv. Maintenance and Support does not include services to resolve problems or errors in any modifications to the Software that Pica8 provides as a deliverable pursuant to a separate professional services engagement.
v. Maintenance and Support does not include training, installation, configuration or other implementation services or restoring lost data or damage to Customer’s configuration that result from Customer’s actions.
If Customer desires to purchase services with respect to any of the foregoing excluded issues or other professional services outside the scope of Maintenance and Support, Pica8 may provide such professional services to Customer for a fee pursuant to a separate professional services engagement.
4. Customer’s Responsibilities
(a) Supported Platform and Operations. Customer is responsible for the supervision, control, and management of Customer’s use of the Software, including but not limited to (i) ensuring that the Software and the Supported Platform are compatible with Customer’s business and systems requirements; (ii) providing, maintaining and assuring proper configuration (and backing up the configuration) of the Supported Platform; and (iii) training Customer personnel in the operation and maintenance of the Software and the Supported Platform.
(b) Required Assistance and Customer Activities.
i. Customer shall provide reasonable assistance to Pica8 in determining and resolving Errors that 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 is responsible for implementing Error Corrections that Pica8 provides.
ii. Customer shall 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. Customer acknowledges that Pica8 may not be able to determine Errors or provide Customer with an Error Correction without such remote access.
iii. Customer shall respond in a timely manner to requests for information by a Pica8 Support Representative. Any information Customer provides Pica8 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. Customer acknowledges and agrees that, as part of Pica8’s Error resolution process, Pica8 may make such information available to Pica8 personnel in foreign countries, unless Customer notifies Pica8 otherwise in writing when providing Pica8 with such information.
iv. Error resolution may require that Customer install Releases for the Software or upgrade to the most recent version of the Support Platform. Pica8 reserves the right to charge additional fees for assisting Customer in resolving Errors or installing Releases where Pica8 support is necessitated or complicated by Customer’s failure to install Releases. (For example, Pica8 may charge fees for Release support if Customer falls behind 1 major version and Customer requests to upgrade from v2 to v4.)
(c) Designation of Support Contacts. If required by Pica8 in its sole discretion, Customer shall designate up to two individuals to be the Customer Contacts for receiving Support and Maintenance, using such method as Pica8 specifies. If Pica8 requires designation of Customer Contacts, (i) Customer may not have more than the specified number of Customer Contacts at any one time; (ii) Customer may change the Customer Contacts by notifying Pica8 in writing; and (ii) Customer may not change a Customer Contact 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. Customer and Pica8 may agree for Pica8 to provide training services for a mutually agreed-upon fee pursuant to a separate professional services agreement. If Customer desires to purchase training services, Pica8 may provide such training to Customer for a fee pursuant to a separate professional services engagement.
5. New Releases of the Software
(a) Maintenance Releases. If and when available, Pica8 will provide to Customer during the Maintenance Term, at no additional charge, Maintenance Releases that Pica8 makes generally available to customers who have purchased Maintenance and Support. Any Release is part of the Software and subject to the terms and conditions of the EULA and these Support Terms. 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 in these Support Terms 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, modifications and/or additions to the Software are excluded from Pica8 Standard Maintenance and Support. If Customer desires to purchase services in connection with the migration of customizations, modifications or additions to Releases, Pica8 may provide such services to Customer for a fee pursuant to a separate professional services engagement.
6. Maintenance and Support Fees
(a) Fees. Fees for the initial Maintenance Term are set out in Customer’s order with Pica8 or Pica8’s authorized reseller or OEM. Fees for renewal Maintenance Terms are based on Pica8’s then-current prices. Pica8 reserves the right to increase the applicable fees payable for Maintenance and Support for any renewal Maintenance Term. To the extent permitted by law, orders are non-cancellable and, except as otherwise expressly provided in these Support Terms, fees paid for Maintenance and Support are non-refundable. Customer has no right of set-off or deduction except as expressly agreed by Pica8 in writing. All payments shall be made in United States dollars.
(b) Charge Authorization. If Customer pays with a credit card or other online payment method, on the applicable payment date Pica8 will charge the payment method Customer provides. If Pica8 cannot charge Customer’s payment method for any reason (such as card expiration or insufficient funds), (i) Customer will remain responsible for any uncollected amounts and (ii) if Customer updates its payment information, Pica8 will attempt to charge the payment method again. In accordance with applicable law, Pica8 may update payment method information notified to Pica8 by Customer or its financial institution. Customer authorizes Pica8 to charge and update Customer’s payment method as described in this clause.
(c) Late Payments. If Pica8 cannot charge Customer’s payment method for any reason (such as card expiration or insufficient funds), or if Customer is an invoiced customer and Pica8 has not received payment within five (5) days after the due date, (i) interest shall accrue on past due amounts at the rate of 1.5% per month or the highest rate of interest allowed by law, whichever is less; and (ii) Customer agrees to reimburse Pica8 for reasonable costs of collection, including but not limited to reasonable collection fees and attorneys’ fees and expenses.
(d) Taxes. Customer is responsible for payment of all sales, use, value-added (VAT), ad valorem, excise or other governmental taxes, duties, levies, tariffs, or transactional charges (other than taxes on Pica8’s net income) and any related interest and/or penalties (collectively, “Taxes”). If Pica8 has the legal obligation to pay or collect Taxes for which Customer is responsible, Pica8 will invoice Customer for such Taxes and Customer shall pay them unless Customer provides Pica8 with a valid tax exemption certificate.
7. Term, Renewal and Termination
(a) Maintenance Term. The initial Maintenance Term shall begin and end on the dates set forth in the applicable order form or purchase order. Upon expiration of the initial Maintenance Term and each renewal Maintenance Term, Customer’s subscription to Maintenance and Support shall automatically renew and a new Maintenance Term for another twelve (12)-month period shall begin; provided that (i) Pica8 still offers Maintenance and Support for the Software under the terms of these Support Terms at the time of renewal; (ii) Customer has not given Pica8 written notice that Customer declines to renew Maintenance and Support at least thirty (30) days prior to the end of the expiring Maintenance Term; and (iii) Customer pays the then-current list price for the Maintenance and Support 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.
(b) Termination of Maintenance and Support.
i. Either party may terminate Maintenance and Support upon thirty (30) days written notice to the other party of a material breach by the other party of its obligations set forth in these Support Terms (including but limited to a failure to pay), 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 and Support fees paid. If Customer terminates Maintenance and Support as a result of Pica8’s uncured breach, Pica8’s sole and exclusive obligation will be to 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.
ii. Pica8 may terminate Maintenance and Support for particular Software with reasonable prior written notice if Pica8 no longer supports such Software. In the event Pica8 so terminates the Maintenance and Support, Pica8’s sole and exclusive obligation will be to refund that portion of the Maintenance and Support fee actually paid by Customer that is proportional to the percentage of the Maintenance Term for the unsupported Software remaining at the time termination is effective.
iii. The termination of Maintenance and Support shall not affect Customer’s licenses to the Software. All provisions of these Support Terms that reasonably should survive termination shall so survive.
(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 applicable Software and if Customer pays a fee equal to (i) the Maintenance and Support fees for the period during which Customer did not receive Maintenance and Support and (ii) the Maintenance and Support fee for the current Maintenance Term.
8. Limitation of Liability
(a) In no event shall Pica8 be liable for cost of cover or for any incidental, special, indirect, consequential or punitive damages, for loss or corruption of data or interruption or loss of business, or for loss of revenues, profits, goodwill or anticipated sales or savings. Some jurisdictions do not allow the limitation of incidental or consequential damages so this limitation may not apply.
(b) In no event shall Pica8’s aggregate liability to Customer exceed the fees Customer paid for Maintenance and Support during the 12-month period immediately preceding the event giving rise to the claim.
(c) The foregoing limitations of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement, or otherwise, and even if Pica8 has been advised of the possibility of such damages. Nothing in these Support Terms limits or excludes any liability that cannot be limited or excluded under applicable law. This limitation of liability is cumulative and not per incident.
(a) Warranty. Pica8 warrants that Maintenance and Support will be performed in a professional manner. Pica8’s entire liability and Customer’s exclusive remedy for breach of warranty will be, at Pica8’s option, to (i) use commercially reasonable efforts to reperform the non-conforming services in a manner that conforms to the warranty, or (ii) refund to Customer the fees paid by Customer to Pica8 for the nonconforming Maintenance and Support services.
The foregoing 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.
(b) Force Majeure. Except for the payment of monies due, a party shall be excused from failure or delay in performing its obligations under these Support Terms due to natural disasters, power outages, denial of service attacks, weather, strikes, riots, war, governmental action or other reasons beyond its reasonable control.
(c) Notices. All legal notices required under these Support Terms must be in writing and delivered by electronic mail, overnight delivery service, or certified mail. Pica8’s email address for notices is legal@Pica8.com and its physical address is 1032 Elwell Court, Suite 105, Palo Alto, CA 94303. Customer must email to legal@Pica8.com a copy of any notice that it sends to Pica8’s physical address. Customer’s address(es) for notices will be those in Customer’s initial order or purchase order for Maintenance and Support (or such other address as Customer notifies Pica8 in accordance with this section).
(d) Governing Law. Any claim, controversy or dispute arising under or relating to Maintenance and Support or these Support Terms 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 United Nations Convention on the International Sale of Goods will not apply. Customer and Pica8 irrevocably submit to the exclusive jurisdiction of the courts located in Santa Clara County, California.
(e) Remedies; Waiver; Severability. Except as expressly set forth in these Support Terms, the exercise by either party of any of its remedies under these Support Terms will be without prejudice to its other remedies under these Support Terms or otherwise. The failure by either party to enforce any provision of these Support Terms will not constitute a waiver of future enforcement of that or any other provision. These Support Terms does not grant any right or cause of action to any third party. If any provision of these Support Terms is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.
(f) Independent Contractors. Customer and Pica8 are independent contractors and do not have any relationship of partnership, joint venture, employment, franchise, or agency. Neither party has the power to bind the other or incur obligations on the other’s behalf.
(g) Modifications of Support Terms. Pica8 may update these Support Terms from time to time by posting the updated Support Terms on its website. Customer’s continued use of Maintenance and Support constitutes Customer’s acceptance of such changes. No other amendment to or modification of these Support Terms will be binding unless in writing and signed by Pica8.
(i) Complete Agreement. These Support Terms, together with the applicable order form or purchase order for the Maintenance and Support and any other agreement executed between Customer and Pica8 with respect to the purchase of Maintenance and Support, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous understandings with respect to its subject matter, oral or written, and any past dealings or industry custom. Any terms or conditions contained in a purchase order or any other ordering document issued by Customer are void.
Pica8 Product Bulletins
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 https://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.
|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
|Last Day of Order
|The last date to order the product. The product is no longer for sale after this date.
|Non-blocking 48x10GE SFP+ switch with dual redundant power supplies.
|Non-blocking 48x10GE SFP+ with 4X40GE ports of QSFP uplinks switch with dual redundant power supplies, extended range optics.
|Non-blocking 48xGE switch with 4x10GE SFP+ uplinks and embedded power supply.
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
|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