magicJack, LP

magicJack™ Device and Software

Terms of Service
and
Software License Agreement


Welcome to magicJack. The magicJack™ device is brought to you by magicJack, LP, a limited partnership organized under the laws of Delaware. Before you begin using the magicJack™ device and the associated Software (the "Software"), you must read and agree to these Terms of Service and the following terms and conditions and policies, including any future amendments (which we refer to collectively as the "Agreement"). For your convenience, we have written this Agreement in plain English. However, you agree that the terms should be interpreted broadly to protect the intention of the Agreement.

BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU INDICATE YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT AND ABIDE BY THIS AGREEMENT, YOU MAY NOT USE THE magicJack™ DEVICE OR DOWNLOAD OR USE THE SOFTWARE.

Although we may choose to notify you when changes are made to these Terms of Service, you should periodically review the most up-to-date version, which you can always find at http://www.magicJack.com/tos.html. magicJack may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by those modifications or revisions. Unless explicitly stated someplace else, any new features that may augment or enhance the magicJack™ device and Software will also be subject to this Agreement. In addition to this Agreement, you must also read and agree to the magicJack [Privacy Policy] and the policies for making emergency service available as described on our [Emergency Services Setup] page.

This is an agreement between magicJack, LP. (the licensor of the magicJack™ device and the Software) and you. Nothing in this Agreement will be deemed to confer any rights or benefits to anyone else.

  
1. Description of How the magicJack™ Device and Software Works 
  The magicJack device and Software enables a multimedia, feature rich service that will allow users access to a variety of exciting content and services. The magicJack™ device and Software are flexible, simple, yet full of features and content for the Internet savvy consumer. There are several services that are available today using your magicJack™ device and many features will follow. The number of features will continue to grow as the magicJack™ device becomes the premium device for Internet users. Our most exciting feature allows magicJack™ device users to engage in free Internet communications. Among other things, as described fully below, the magicJack™ device allows you to receive free in-bound communications from other magicJack™ device users anywhere in the world while connected to the magicJack service. If you so choose, you may elect to use the magicJack™ device to make free out-bound communications to other magicJack™ device users and other non-magicJack™ device users.

To enable your use of the magicJack™ device, you must first download the magicJack™ Software. Some enhanced features also require you to purchase the magicJack™ device. In addition, you need a computer running Windows XP with a high speed Internet connection and, if you purchase the magicJack™ device, an available USB port. Bear in mind that the magicJack™ device and/or the Software are dependent on these requirements and the failure of one may prevent the magicJack™ device and/or the Software from working. magicJack can not guarantee that the magicJack™ device will always function without disruptions, delay or other imperfections. There may be power outages or Internet service disruptions and you may experience other disruptions unrelated to the magicJack™ device, which will interfere with the quality of your communication. Although once you have purchased a magicJack™ device or downloaded the Software, use of the magicJack™ device and/or the Software is free, you are responsible for getting the things you need to make the magicJack™ device work, and that may involve third-party fees (such as Internet service provider or Internet airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for any additional equipment necessary (such as a communications adaptor or a headset), to use the magicJack™ device or the Software. The magicJack™ device may not be compatible with non-voice communications equipment, including but not limited to, home security systems, medical monitoring equipment, fax machines, satellite television systems, or computer modems.

The goods and services offered by magicJack provide a multimedia experience which includes a voice over Internet information service feature. It is not a telecommunications service and is subject to different regulatory treatment from telecommunications services.
 
  
2. Ownership and Risk of Loss of magicJack™ Device 
  You will own the magicJack™ device, but not the Software included on the device, which is licensed to you under this Agreement for a one year term, and bear all risk of loss of, theft of, casualty to or damage to the magicJack™ device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement, or the warranty covering the magicJack™ device, if any, expires. If, within 30 days of purchasing the magicJack™ device directly from our website, you are not satisfied with your magicJack™ device you may either return it to us for a full refund of the purchase price, minus shipping and handling, or exchange it for a new device. The full refund offer is applicable only to the purchase of your first magicJack™ device. In order to receive a refund or exchange you must request and receive a magicJack RMA number by e-mail and the magicJack™ device must be returned in its original packaging, be accompanied by proof or purchase and you must pay the expenses of shipping. You will receive your refund or your new device within a reasonable time frame from the time we receive your package; which is approximately 14 days for an exchange and 45 days for a refund. If you purchased the magicJack™ device from one of our authorized agents, please contact the distributor or retailer directly to learn about their refund policy.
 
  
3. Internet Communications Feature 
  a) Incoming Calls: magicIn 
When you first register with magicJack, as part of the available features, magicJack will allocate a unique phone number to you, which will allow you to receive free phone calls over the Internet. The phone number will be allocated provided that magicJack determines that it is legally permissible. If you are eligible for a phone number, it will be allocated to you as soon as reasonably possible after we have received your request. magicJack does not guarantee that a requested phone number can be allocated to you or that you can make use of the incoming call features of the magicJack™ device.

The allocation of a phone number to you does not constitute any transfer of title, ownership, license or other rights with regard to the phone number; and the phone number is not portable to other service providers. magicJack may, without any liability, refuse, change or terminate any phone number at anytime. If magicJack changes the phone number that has been allocated to you by magicJack, magicJack will notify you, stating the effective date of the change and your new phone number. If you do not wish to accept this new phone number, you are entitled to cancel this Agreement; however, you will not be eligible for any refund unless you terminate the Agreement within 30 days of purchase of the magicJack™ device and qualify for a refund as further described in Section 2 of this Agreement. magicJack will not be liable for any damages resulting from the change of the phone number.
 
b) Outgoing Calls: magicOut 
Once you have registered your magicJack™ device and agreed to these Terms of Service and our Privacy Policy by hitting the accept buttons, you have the option of registering for the feature to make free outgoing calls over the Internet. You can make free calls to other magicJack™ device users located anywhere in the world, and to subscribers on traditional telephone networks or wireless networks in the United States. You will not have the ability to call any number that would require the addition of any charges to your phone bill, such as 900 or 976 numbers or any other "fee per call" type service.
 
 
  
4. What Is Free and What is Not: 
  The magicJack™ device allows you to receive for free incoming calls using the phone number we assign to you. If you register for magicJack outgoing service ('magicOut"), the magicJack™ device allows you to make free outgoing calls to other magicJack™ device users located anywhere in the world, and the subscribers on traditional telephone networks or cellular networks in the United States. We may provide for a fee, premium prepaid services, powered by YMax Communications Corp. ("YMax"), including International Calling and Conferencing services and the rates for those services will be governed by YMax's effective price lists or tariffs and are not governed by this Agreement. magicJack may make available to you, for an additional fee, enhanced versions of the magicJack™ Software ("Upgraded Software") which provide new features and functions.
 
  
5. Emergency calls 
  The services offered by magicJack are not traditional telephone services, so we are not required to provide you with access to emergency 911, E911, or similar access to emergency services. However, when you register to use the magicJack™ device, you will be enrolled in magicJack's voluntary 911 service, if you register a U.S. service address. magicJack will take commercially reasonable steps to provide you with emergency service calling. This requires your cooperation. You must comply with the procedures on our [Emergency Services Setup] page. Initially, we will use the address you gave us when you subscribed to the Service. You must update this address whenever you change the location from which you place your calls. You agree that each and every time you change the physical location of where you are using the magicJack™ device, you will log back to the [Emergency Services Setup] page and provide the new address where you are using the magicJack™ device. If you fail to do so the free voluntary 911 service will not work.

You understand and agree that the 911 emergency dialing feature is provided to you as a convenience. magicJack will not be liable for any damages resulting from any call made using the emergency dialing feature. You understand that magicJack's voluntary 911 service will not work in certain circumstances, including, but not limited to: when you relocate your computer or magicJack™ device to a new physical location different than the one you registered with us; if you experience broadband connection failure; if you experience loss of electrical power at your location; if delays occur in the system making updates of your registered physical location. You assume the risk that you may not obtain emergency service when you use the 911 emergency dialing feature. You should always have an alternative means of accessing 911 or similar emergency services such as a landline telephone. It is your responsibility to inform others who use your magicJack™ device to make phone calls that they should be prepared to access the 911 emergency numbers through a traditional landline or mobile phone.
 
  
6. Proper Use 
  You agree that you are responsible for your own communications and for any consequences that arise from them. You agree that you will use the magicJack™ device in compliance with all applicable local, state, national, and international laws, rules and regulations. Among other things you will not, will not agree to, and will not authorize or encourage any third party to: (a) prevent others from using their magicJack™ devices, (b) use the magicJack™ device for any fraudulent or inappropriate purpose, or (c) remove any copyright, trademark or other proprietary rights notices contained in or on the magicJack™ device, including those of any of our business associates, from whom we may have licensed certain components used in the magicJack™ device. Violation of any of these obligations may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. magicJack reserves the right, but will have no obligation, to investigate your use of the magicJack™ device in order (a) to determine whether a violation of the Agreement has occurred or (b) to comply with any applicable law, regulation, legal process or governmental request. If magicJack sees excessive use or systematic or intentional misuse, it reserves the right, in our sole discretion, to terminate your use of the magicJack™ device and/or Software immediately, and you will not be entitled to get a refund of any licensing fee or any other fee you may have paid to us.
 
  
7. No Resale 
  Unless expressly authorized in writing by magicJack, you agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any purposes any portion of the magicJack™ device or the Software.
 
  
8. License 
  magicJack grants you a personal, non-transferable and non-exclusive right and license to use the magicJack™ device and Software on your computer; provided that you do not (and do not allow anyone else to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right of the magicJack™ device. The initial term of this license is for one year and may be renewed (for an additional fee) for additional terms of one year each. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including for the purpose of obtaining unauthorized access to the magicJack™ device. You agree not to access the magicJack services by any means other than through the Software and the magicJack™ device.
 
  
9. Payment 
  Use of the magicJack™ device is free. Your purchase of the magicJack™ device and registration of the magicJack™ device gives you a license to use the magicJack™ and the Software for one year. To continue using the magicJack™ device and the Software after the end of the initial one-year term, you must renew your Software access license for additional one-year terms at magicJack's then applicable license fee. Failure to renew your registration after the end of the initial term or any renewal term will result in immediate termination of your license and access to any magicJack features. You will not be able to use the magicJack™ device and your right to use any phone number that was allocated to you will be canceled. [For your convenience, magicJack offers an auto-renewal program for which you must provide your credit card, billing and other information. If you elect to enable the auto renew feature, your credit card will be automatically charged on the last business day of the current term for the prevailing renewal fee. You can elect to disable this auto renew feature at any time by going to http://www.magicJack.com/account.html.] magicJack offers a thirty-day refund for the magicJack™ device.

You agree to be responsible for any applicable taxes, fees, or charges, now in force or enacted in the future in connection with the license and your use of the magicJack™ device.
 
  
10. Privacy Policy 
  Your registration data and certain other information about you are subject to magicJack's [Privacy Policy]. You understand that by using the magicJack™ device you consent to magicJack's collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to and from the United States and/or other countries for storage, processing and use by magicJack, its affiliates and business partners to provide you with information about communications-related service. CLICK HERE TO OPT-IN TO RECEIVE INFORMATION THAT WILL HELP US SERVE YOU BETTER: http://www.magicJack.com/cpni.

You acknowledge, consent and agree that magicJack may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to your requests for customer service; or (d) protect the rights, property or personal safety of magicJack, its users and the public.

You understand that the technical processing and transmission of the magicJack™ device may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
 
  
11. Advertisements 
  You also understand and agree that use of the magicJack™ device and Software will include advertisements and that these advertisements are necessary for the magicJack™ device to work and for the service to be free in the first year of the agreement (and subsequent licenses to be at minimal cost). Advertisements will be served through the magicPage™ Software. magicPage™ Software attempts to serve local advertisements and classifieds using a completely automated process that enables us to effectively target dynamically changing content. Our computers may analyze the phone numbers you call in order to improve the relevance of the ads. We do not provide any personal information to our advertisers or third parties. magicJack has a policy of restricting advertisers that it believes are inappropriate, but it does not guarantee the accuracy or integrity of any advertisers and does not endorse any of the advertisements that may appear in connection with use of the magicJack™ device. You also understand and agree that use of the magicJack™ device and Software may include certain communications, such as service announcements, administrative messages and newsletters, and you will not be able to opt out of receiving them.
 
  
12. Indemnification 
  You agree to hold harmless and indemnify magicJack, and its subsidiaries, affiliates, officers, agents, employees, partners and licensors, from and against any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of or relating in any way to, your use of the magicJack™ device (including but not limited to the cancellation, absence, failure or outage of the magicJack™ device, including specifically any claims arising out of the failure to complete emergency service calls). In such a case, magicJack will provide you with written notice of such claim, suit or action.
 
  
13. Modification 
  magicJack reserves the right to modify or discontinue the magicJack™ device and Software, temporarily or permanently, with or without notice to you. We will not be liable to you or anyone else in the event that we exercise our right to modify or discontinue the magicJack™ device or Software.
 
  
14. Termination 
  You agree that magicJack, in its sole discretion, may immediately terminate this Agreement and your license to use the magicJack™ device and Software, without any refund. magicJack may terminate this Agreement for any reason, including, but not limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) unexpected technical or security issues or problems, (d) use of the magicJack™ device or Software in violation of any laws, regulations, or rules, or in any manner that disrupts use of the magicJack™ device or Software by others, or (e) nonpayment of any fees, including license renewal fees, owed by you in connection with the magicJack™ Software, (f) changes in any rules or regulations that affect our ability to provide the magicJack™ device or the Software. Termination of your license includes cancellation of your ability to use the magicJack™ device and the Software, without refund and deletion of all related account information associated with or inside your account. Further, you agree that any termination of this Agreement will be made in magicJack's sole discretion and that neither magicJack nor any of its agents or affiliates will be liable to you or anybody else for termination of your license or this Agreement.

You may terminate the use of the magicJack™ device at any time [and uninstall the Software through the "Add or Remove Programs" Control Panel].

All provisions which must survive in order to give effect to their meaning will survive any expiration or termination of this Agreement, including without limitation, all of your representations, warranties and indemnification obligations.
 
  
15. Intellectual Property Rights 
  You acknowledge and agree that the magicJack™ device and the Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by magicJack or advertisers, you agree not to reverse engineer, modify, rent, lease, loan, sell, distribute or create derivative works based on the magicJack™ device or the Software, in whole or in part.
 
  
16. No Warranties 
  THE magicJack™ DEVICE AND SOFTWARE ARE PROVIDED "AS IS", WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE.

MAGICJACK MAKES NO WARRANTY REGARDING THE OPTIONAL FREE 911 EMERGENCY DIALING FEATURE PROVIDED. ALL CALLS MADE USING THE 911 EMERGENCY DIALING FEATURE ARE MADE AT THE CALLER'S RISK.

MAGICJACK MAKES NO WARRANTY AS TO THE COMPLETION, CLARITY, OR OVERALL QUALITY OF ANY PARTICULAR CALL MADE USING THE SERVICE.

MAGICJACK MAKES NO WARRANTY THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

MAGICJACK MAKES NO WARRANTY ABOUT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR THAT OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MAGICJACK OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
 
  
17. Limitation of Liability 
  magicJack can only be held liable for direct damages resulting from failure to perform its obligations under this Agreement. In this respect, direct damages means the amount you actually paid for the magicJack™ device and Software license during the year in which such damages occur. To the maximum extent permitted by applicable law, magicJack will not be liable for any indirect, special, incidental or consequential damages whatsoever (including but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy arising out of or in any way related to the use of or inability to use the magicJack™ device or Software, even if magicJack has been advised of the possibility of such damages.

Some jurisdictions do not allow some of the exclusions or limitations as established above, so they may not apply to you. In that event the liability will be limited as far as legally possible under the applicable legislation.
 
  
18. Export/Import 
  You agree to comply with all export and import laws and restrictions and regulations of the United States and foreign countries, and not to export, re-export or import the magicJack™ device or Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. Neither the magicJack™ device the Software, nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) to Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other country subject to U.S. trade sanctions applicable to the magicJack™ device or Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and/or the U.S. Department of Commerce, Bureau of Export Administration Denied Persons List or Entity List. You acknowledge that the Software contains encryption technology, the export of which is restricted by the U.S. and certain foreign laws. By downloading the Software or using the magicJack™ device, you agree to this section and represent and warrant that you comply with these conditions.
 
  
19. Automatic Updates 
  The magicJack™ device and/or Software may communicate with magicJack's servers to check for available updates to the Software and/or magicPage™, including bug fixes, patches, missing plug-ins and new versions (collectively, "Updates"), however magicJack has no obligation to provide you with such Updates and we do so solely at our option. Updates do not include access to the Upgraded Software described in Section 5 above. To ensure that you have the most recent Updates for the Software you should periodically visit http://www.magicJack.com to check for Updates. During the Update process, the Software may send to magicJack or its partners a request for the latest Software version. By installing the magicJack™ Software, you hereby agree to allow magicJack the option to automatically provide Updates from magicJack and/or its partners' servers.
 
  
20. Representations and Warranties 
  You represent and warrant that (a) all of the information provided by you to magicJack to use the magicJack™ device and Software is correct and current; (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder; and (c) you are at least [18]-years-old.
 
  
21. Entire Agreement 
  This Agreement is the entire agreement between you and magicJack and governs your use of the magicJack™ device and Software, it trumps any prior agreements between you and magicJack. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other magicJack services, affiliate services, third-party content or third-party software.
 
  
22. Waiver and Severability of Terms 
  Even if magicJack does not exercise or enforce any or all of its rights or any provision of this Agreement it does not mean that magicJack waives the right or provision, and we still enforce those rights and provisions later. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
 
  
23. Statute of Limitations 
  You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the magicJack™ device or Software or services or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
 
  
24. Choice of Law; Binding Arbitration; Forum 
  This Agreement will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the magicJack™ device or Software will be resolved by binding arbitration. The arbitration shall be administered in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any matter to be settled by arbitration shall be submitted to the American Arbitration Association in Palm Beach, Florida, and you consent to binding arbitration in Palm Beach, Florida.
 
 
 I have read and agree to the Terms of Service 
 
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End (Info current as of 02/28/2008) - WARNING: Do NOT link to this (or ANY other) file on CutMyBills.Org without permission!