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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.
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.
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.
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.
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.