Subscriber Agreement for Products and Services
provided by magicJack, LP, YMAX Communications Corporation and magicJack VoIP Services, LLC.
The magicJack, magicJack Plus, magicJack Plus 2014, magicJackGO, magicJackEXPRESS and magicJackHOME devices and any future releases of devices with similar or upgraded functionality (each individually a “Device” and collectively “Devices”) are brought to you by magicJack, LP, a limited partnership organized under the laws of Delaware (“magicJack, LP”). The magicApp and renewal server access are brought to you by magicJack VoIP Services, LLC, a limited liability company organized under the laws of Delaware (“MVS”). The International prepaid calling services and other communication services are brought to you by YMAX Communications Corporation, a corporation organized under the laws of Delaware (“YMax”). Before you begin using the Devices, the magicApp, the Services, or the Associated Software, you must read and agree to this Subscriber Agreement (referred to collectively with any future amendments hereto as the “Agreement”).
As used in this Agreement, the following terms have the following meanings:
“Add-On Service” as defined in Section 7.
“Associated Software” means the software provided by MVS and accessed or otherwise used by the Devices and/or the magicApp to facilitate your use of the Services and any related Documentation provided by us.
“Canadian Number” as defined in Section 7.
“Company”, “Companies” or “we” or “us” or “our” means magicJack LP, YMax and/or MVS as the context requires. Each such entity provides a unique product and/or service under this Agreement and each such entity shall (a) only be liable for any obligations arising from this Agreement with respect to the product or service offered by such entity, and (b) only be entitled to any rights arising from this Agreement with respect to the product or service provided by such entity. Referring to these entities collectively is for ease of reference only and is not intended to imply that there is a lack of independence among them nor that any such entity is liable for the obligations of the other or that any party has the power to bind any other party or acts as the agent for the other. This Agreement creates a separate agreement between you and each of magicJack LP, YMax and MVS.
“Initial Subscription Term” as defined in Section 8.a. of this Agreement.
“MVS” as defined in the first paragraph of this Agreement.
“Premium Number” means a Custom Phone Number or a Vanity Phone Number as described in Section 7, but excludes numbers that are ported into the Service by you.
“Registration” or “Register” means (a) for a Device purchased directly from us at www.magicjack.com, either registration at the time of your purchase of the Device or at www.magicjack.com after your receipt of the Device, or (b) for a Device purchased from one of our retail partners, registration through www.magicjack.com following purchase of the Device, or (c) for the magicApp Basic or magicApp Premium Service, registration upon download of the magicApp.
“Renewal Date” as defined in Section 8.b. of this Agreement.
“Renewal Subscription Term” as defined in Section 8.a. of this Agreement.
“Service(s)” means, as the context requires, the services furnished through the use of any Device, the magicApp, any Add-On Service or the Associated Software. The collective term “Services” shall be deemed to refer to the use of a Device, the magicApp, any Add-On Service or the Associated Software as the context implies.
“Subscription Term” as defined in Section 8.a. of this Agreement.
Although we may choose to notify you when material changes are made to this Agreement, you should periodically review the most up-to-date version, which you can always find at https://www.magicjack.com/saps. We may, in our sole discretion, modify or revise this Agreement at any time and, by your continued use of the Services, you agree to be bound by those modifications or revisions. Unless explicitly stated otherwise by the Company, your use of any new features that may augment or enhance the Services will also be subject to this Agreement.
This Agreement sets forth the terms of the agreements between you and each of magicJack, LP, YMax and MVS as the case may be. Nothing in this Agreement will be deemed to confer any rights upon or benefits to anyone else.
1. Description of how the Services work.
The Devices, the magicApp and Associated Software enable the Services, which include a voice over Internet Protocol service feature and text messaging capability (available with the magicApp Premium Service). To enable your use of the Services you must first purchase a Device and download the Associated Software if not already installed on the Device when shipped to you, and/or download the magicApp. You may download the magicApp from the iTunes App Store and the Google Play store. Some enhanced features also require you to purchase additional services or premium plans. In addition, you may need a computer running Microsoft® Windows (7, 8 or 10) or Mac® running MAC OS Lion (10.7.x) or up with a high speed Internet connection and, if you purchase a Device, you may need an available USB port and/or a standard telephone to plug into the Device. The Device and/or Services may work with prior versions of the foregoing operating systems, but we will not be able to provide technical support for any such prior versions. Further, our ability to provide technical support will be limited for older versions of the Device that are no longer capable of receiving software updates. Bear in mind that your use of the Services may be dependent on these requirements and the failure of one may prevent the Services from working. We cannot guarantee that the Services 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 Services, which will interfere with the quality of your Service. You are responsible for obtaining third party products and services required to use the Services (such as a computer with an appropriate operating system and port, high speed internet access and a standard telephone to plug into the Device) and for paying any fees for such third party products and services. The Services may not be compatible with certain equipment, including but not limited to, home security systems, medical monitoring equipment, fax machines, satellite television systems, or computer modems.
2. Ownership and Risk of Loss of Device
You will own the Device or Devices you purchase but not the Associated Software used to access Services with the Device or magicApp, which is provided to you by MVS for your use under this Agreement. You bear all risk of loss of, theft of, casualty to or damage to any Device you purchase from the time of purchase and/or shipment until the time (if any) when it is returned to us in accordance with this Agreement. If, within 30 days after placing your order for the Device directly from the www.magicjack.com website, you are not satisfied with your 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 or exchange offer is applicable only to the purchase of your first Device. In order to receive a refund or exchange you must request and receive a magicJack RMA number by e-mail and the Device must be returned in its original packaging, and you must pay the expenses of shipping. Request your RMA here https://my.magicJack.com/returns.html. You will receive your refund or your new Device within a reasonable time frame after we receive your package; which is approximately 14 days for an exchange and 45 days for a refund. If you purchased the Device from one of our authorized agents, please contact the distributor or retailer directly to learn about their refund and exchange policy.
3. Internet Communications Feature
a) Incoming Calls:
When you first Register your Device or download the magicApp Premium, as part of the available features, you may elect to choose a unique phone number. A monthly or annual fee will apply if you choose a Premium Number, the terms of which will be disclosed to you prior to you agreeing to a Premium Number. If you are using the magicApp as a companion to your Device, your Device and magicApp will have the same phone number. YMax is the provider of your phone number and/or inbound calls. The phone number chosen by you will be allocated to you provided YMax determines that the number is available and legally permissible. If you are eligible for a phone number, it will be allocated to you as soon as reasonably possible after YMax has received your request. Premium Numbers are not permanently assigned to your account until after the first 30 days of use. YMax may use customized ringtones or ring back when completing your calls, including supplying various messages of different lengths. YMax does not guarantee that a requested phone number can be allocated to you or that you can make use of the incoming call feature. 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. If you transfer or port out your phone number to another service provider, your Service is terminated and you relinquish all claims for a refund of Service(s) fees paid for your then current Subscription Term. YMax may, without any liability, refuse, change or terminate any phone number at any time. If YMax changes the phone number that has been allocated to you, YMax 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 after purchase of your Device or download of the magicApp Premium and you qualify for a refund as further described in Section 2 of this Agreement. We will not be liable for any damages resulting from the change of the phone number.
b) Outgoing Calls:
When you Register your Device, you may now elect to choose the feature allowing you to make free outgoing calls over the internet. You can make free calls to other Device or magicApp users located anywhere in the world, and to traditional telephone networks or wireless networks in the United States (other than Alaska), Canada (other than Yukon and the Northwest Territories). International calls and calls to Alaska, and the Yukon and Northwest Territories of Canada to non-Device or magicApp users will require purchase of prepaid international calling service. magicjack, LP allows outbound calling capability which in turn may use YMax as the provider of outbound calling services to subscribers on traditional telephone or wireless networks in the United States and Canada, or for toll free calls, and/or for international calls. We may supply various messages of different lengths before your call is completed. Some restrictions in cost prohibitive areas may apply. 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. Calls of long duration may be terminated to make sure the integrity of the network is kept intact, which would prevent abandoned calls.
4. What Is Free and What is Not:
A Device or magicApp allows you to receive incoming calls. If you choose outgoing service, the Device or magicApp allows you to make outgoing calls to other Device or magicApp users located anywhere in the world and to traditional telephone networks or cellular networks in the United States (other than Alaska) and Canada (other than the Yukon and Northwest Territories) for no additional charge. Outgoing calls do not include non-8YY accessed calling card, platform, conference or chat lines. We may require prepaid purchase and/or we may charge you for calls to conference lines, platforms and certain other high cost calls, or any call wherein we incur a cost from another carrier. We may provide for a fee, premium prepaid services, which may be powered by YMax, and may include some inbound, international, conference, platform and outbound calls that receive a recording and certain calls to high cost areas, and the rates for those services will be governed by listed price lists or tariffs and billed in full minute increments. Charges may apply to use the call forwarding feature, if available. MVS may make available to you, for an additional fee, enhanced versions of the Associated Software (“Upgraded Software”) that provide new features and functions. “magicApp Basic” is a free download with limited capabilities including free calls to Devices and magicApp users around the world. “magicApp Premium” is a paid download that provides you with greater calling capabilities including a dedicated U.S. phone number and texting to U.S. mobile numbers with texting capability located in the U.S.. Texting to Canadian Numbers is not available. magicApp Premium is included at no additional cost to Device users for the applicable term of Service for such Device. For each Device account, you may download magicApp Premium as a companion App to either a single iTunes account or a single Google Play account.
5. Emergency calls:
Please read carefully and understand the difference between Devices and the magicApp.
magicApp does not provide any emergency calling or texting capability.
magicApp – No Emergency Calls or Texts. magicApp does NOT support any emergency calls or texts to 911. magicApp is not a traditional telephone service or a replacement for your primary telephone service. There are important differences between traditional telephone services and the magicApp Associated Software and Service. You need to make additional arrangements to call or text 911. It is your responsibility to use the wireless 911 feature of your smart phone or purchase, elsewhere, traditional wireless or fixed line telephone services that offer access to 911. It is your responsibility to inform all users that may use the magicApp Associated Software that you have downloaded, that it is not possible to support or carry 911 calls or texts using the magicApp Associated Software and products, and that they may access emergency services via the additional arrangements that you have made available.
Device 911 calling Service – The Service is not a traditional telephone service and we are not required to provide you with access to 911, E911, or similar access to emergency services. However, when you Register your Device, you may enroll in 911 service if you register a United States 911 address for United States telephone numbers or a Canadian 911 address for Canadian Numbers. magicJack, LP may take commercially reasonable steps to provide you with emergency service calling only for your registered 911 address. If you are a new customer and you are using the Device in the United States or Canada, you must provide a valid 911 address during Registration or your Service will not be activated. If you are an existing customer you must give us a valid 911 address in your my.magicJack.com account in order for 911 service to be active. 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 a Device, you will update the Emergency Services record at my.magicJack.com and provide the new address where you are using the Device. Your 911 service may take up to seven (7) days to work after Registration but refer to your 911 status at my.magicjack.com for more details.
You understand and agree that access to 911 may be provided to you as a convenience. If you choose to use the same phone number for two or more Devices, you will have 911 emergency dialing on all Devices, but possibly only the first Device Registered with the phone number will be associated with the registered 911 address you provide. The Company will not be liable for any damages resulting from any 911 call. You understand that the 911 service will not work in certain circumstances, including, but not limited to: when you relocate your computer or Device to a new physical location without updating your registered location; if you use a non-native telephone number; 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 dial 911. You should always have an alternative means of accessing 911 such as a landline or mobile telephone. It is your responsibility to inform others who use your Device to make phone calls that they should be prepared to access 911 through a traditional landline or mobile telephone.
magicJack E911 services will not operate outside of the United States and Canada.
911 Billing; Additional Fees – We have agreed with certain emergency communications districts to bill you via e-mail to collect the charges imposed by them for your ability to dial 911 services. Such charges are in addition to any fees paid by you for the Device, the magicApp or the Services. It is important that you pay such charges pursuant to the instructions included in any bills you receive. If you do not pay this government-imposed charge, the emergency communications district in your jurisdiction may seek to collect any amounts from you directly. We do not profit at all from your 911 services and the funds we collect are turned over to the appropriate government authority pursuant to their requirements.
6. Proper Use; Suspicion of Fraud:
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 Services in compliance with all applicable local, state, national, and international laws, rules and regulations and you may have to pay certain taxes or fees or surcharges including, without limitation, regulatory fees related to 911 services. Among other things you will not, and will not authorize or encourage any third party to: (a) prevent others from using their Service, (b) use the Service for any fraudulent or inappropriate purpose, (c) remove any copyright, trademark or other proprietary rights notices contained in or on the Devices and/or magicApp, including those of any of our business associates, from whom we may have licensed certain components used in the Devices and/or magicApp, (d) collect or harvest any personally identifiable information, including phone number, from the Service, or use the communication systems provided by the Service for any commercial solicitation or spam purposes and/or (e) spam, or solicit for commercial purposes, any users of the Service. 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. The Company reserves the right, but will have no obligation, to investigate your use of the Device, magicApp, or the Associated Software 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. We may monitor your use of the Service for violations of this Agreement. We may terminate your use of the Device and/or magicApp and/or Associated Software immediately if we suspect a violation of this Agreement, or if we think it necessary to protect other customers or our respective, parents, affiliates, directors, officers, agents, and employees from harm. If we become aware of unreasonably excessive use, including but not limited to, a customer whose usage is extraordinarily greater than the average Device or magicApp customer usage, or a customer who calls more than 50 different telephone numbers per day, or a customer who forwards calls from their Device and/or magicApp to a non-Company number for longer than a two week consecutive period, or systematic or intentional misuse, we reserve the right, in our sole discretion, to terminate your use of the Device and/or magicApp and/or Associated 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. We reserve the right to reclaim any telephone number that does not make a call for 90 consecutive days. In the event that we reclaim a phone number and your Service under this Agreement is still active, you may choose another phone number.
You also agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc. or “load testers”, including without limitation, wget, apache bench, mswebstress, httpload, blitz, Xcode Automator, Android Monkey, etc., that accesses the Service in a manner that sends more request messages to the Company’s servers in a given period of time than a human can reasonably produce in the same period by using the Service, and you are forbidden from ripping the content unless specifically allowed. Notwithstanding the foregoing, the Company grants the operators of public search engines permission to use spiders to copy materials from the website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. The Company reserves the right to revoke these exceptions either generally or in specific cases. While we do not disallow the use of sniffers such as Ethereal, tcpdump or HTTPWatch in general, we do not permit any efforts to reverse-engineer our system, our protocols, or explore outside the boundaries of the normal requests made by Company clients. We do not permit the use of request modification tools, including without limitation, fiddler or whisker, or any other such tools activities that are meant to explore or harm, penetrate or test the site. You must secure our permission before you measure, test, health check or otherwise monitor any network equipment, servers or assets hosted on our domain.
We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other agreement between you and the Company, or exposes you, other Device or magicApp users’, financial services providers, or the Company to harm or unnecessary risk, including but not limited to fraud and other criminal acts. You grant us authorization to share information with law enforcement about you, your transactions, or your Device or magicApp account if we reasonably suspect that use of your Device or magicApp account has been used for an unauthorized, illegal, or criminal purpose.
We may disclose your personal information to law enforcement, government officials, or other third parties if: (i) we are compelled to do so by subpoena, court order or other legal process; (ii) we must do so to comply with laws, statutes, rules or regulations; (iii) we believe in good faith that the disclosure is necessary to prevent physical harm or financial loss, to report suspected illegal or unauthorized activity, or to investigate violations of this Agreement.
7. Add-On Services; International Pre-paid:
In addition to the Device, the magicApp and the Associated Software, we offer the following Services for an additional fee, each of which may be purchased through www.magicjack.com (collectively, the “Add-On Services”):
- Custom Phone Numbers – phone numbers allowing you to choose the last 4 digits.
- Vanity Phone Numbers – phone numbers allowing you to choose the last 7 digits.
- Canadian Phone Numbers – phone numbers with Canadian area codes (“Canadian Numbers”).
- magicJack Concierge Service – magicJack Concierge Service includes the following:
- “Premium Support”, which includes premium technical support for your Eligible Equipment and Services provided through a dedicated premium support phone number, as well as priority handling of calls and claims. You will only have access to Premium Support during your magicJack Concierge Subscription Term. To ensure the maximum benefits to our Premium Support subscribers, our Premium Support phone numbers will change from time-to-time. To obtain the current Premium Support phone number for your Eligible Equipment and Services, go to www.magicjack.com/myaccount, choose magicJack Concierge and follow the instructions.
- “Eligible Equipment and Services” – you may purchase magicJack Concierge Service to cover any Device listed in the table below Registered with the phone number used to log-in to your magicJack account associated with that Device. Each magicJack Concierge subscription will be registered for a single Device with a registered phone number and account. If you have multiple Devices, each Device will require a separate subscription. Subscriptions are only transferable to a replacement Device issued by us to you under the terms of your magicJack Concierge subscription. Subscriptions are not transferable to any other Device. Eligible Equipment includes the following:
Eligible Equipment magicJackHOME magicJackGO magicJack Express magicJack Plus 2014 magicJack Plus magicJack
- Replacement Discounts. In addition to Premium Support, you will receive exclusive access to discounts on Devices should you require a replacement for you Eligible Equipment covered by your magicJack Concierge plan.
- Excessive Use – if we become aware of unreasonably excessive use of your magicJack Concierge Service, including but not limited to, your use of Premium Support in a manner that is extraordinarily greater than the average magicJack Concierge customer, or if you contact us for greater than four (4) separate issues in any month or more than eight (8) contacts in any month, or intentional misuse, we reserve the right, in our sole discretion, to terminate your use of the magicJack Concierge service, and you will not be entitled to a refund of any subscription fee you may have paid to us.
- Your Subscription does not cover any magicJack equipment not listed in the Eligible Equipment table listed above or any third-party accessories or equipment not manufactured by us.
Add-On Services are provided for the fees and Subscription Term communicated to you at the time of purchase.
In addition to the Add-On Services, we offer international dialing services on a pre-paid per-minute basis. International dialing services are not Add-On Services.
8. Subscription; Term; Renewal:
- Subject to the terms and conditions of this Agreement, the Company grants you a personal, non-transferable, non-assignable, revocable and non-exclusive right to use the Services on your Device, smartphone, computer or other digital device for the subscription period chosen by you upon Registration (the “Initial Subscription Term”) and any renewal(s) of the Initial Subscription Term (each a “Renewal Subscription Term” and collectively with the Initial Subscription Term, the “Subscription Term”). The Initial Subscription Term for Services will be communicated to you at the time of purchase and will commence as follows:
- The Initial Subscription Term for Services for Devices purchased directly from us at www.magicjack.com will commence upon the earlier of (i) the date the Device is first activated for use, or (ii) thirty (30) days after the Device is purchased;
- The Initial Subscription Term for Services for a Device purchased from one of our retail partners will begin on the date the Device is Registered.
- The Initial Subscription Term for magicApp Premium Service downloaded for use with a Device will be the same as the Initial Subscription Term for the associated Device;
- The Initial Subscription Term for magicApp Premium Service downloaded for independent use will commence upon downloading of the magicApp Premium software;
- The magicApp Basic Service is a free download, has no Subscription Term and may be terminated by us at any time without notice; and
- The Initial Subscription Term for each Add-On Service will commence upon purchase of the applicable Add-On Service and will not be the same as the Initial Subscription Term for the associated Device or Service(s) unless the Add-On Service is purchased at the same time as the associated Device or Service(s).
- AUTOMATIC RENEWAL. YOU MAY CHOOSE WHETHER YOUR SUBSCRIPTION TERM FOR COMMUNICATION SERVICES WILL AUTO-RENEW UPON REGISTRATION. AUTO-RENEWAL WILL BE DEFAULTED TO “ON” UPON REGISTRATION OR RENEWAL OF ALL SERVICES UNLESS YOU CHOOSE TO TURN IT OFF AS SET FORTH IN THIS SECTION 8.b. IF YOU HAVE CHOSEN AUTOMATIC RENEWAL, AT THE END OF YOUR INITIAL TERM OR ANY RENEWAL TERM, YOUR SERVICE WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL SUBSCRIPTION TERM OF ONE-YEAR UNLESS YOU CANCEL AT LEAST ONE CALENDAR DAY BEFORE THE LAST DATE OF YOUR THEN CURRENT SUBSCRIPTION TERM (YOUR “RENEWAL DATE”). IF HAVE SELECTED AUTOMATIC RENEWAL, AND YOU DO NOT CANCEL YOUR SUBSCRIPTION TERM BY YOUR RENEWAL DATE, YOUR ACCOUNT WILL AUTOMATICALLY BE CHARGED FOR AN ADDITIONAL SUBSCRIPTION TERM AT THE RATES IN EFFECT AT THE TIME OF RENEWAL. ONCE AUTO-RENEWAL HAS BEEN ACTIVATED FOR A SERVICE, IT CAN BE DEACTIVATED BY CALLING CUSTOMER CARE AT 1-800-624-4252 OR BY TURNING AUTO-RENEWAL FOR THE SERVICE IN QUESTION TO “OFF” OR TERMINATING THE SERVICE PRIOR TO THE END OF THE THEN CURRENT SUBSCRIPTION TERM FOR SUCH SERVICE IN EACH CASE AT https://my.magicjack.com/autorenew .
If your Service is not set to auto-renewal, to continue using the Service after the end of your Subscription Term, you must renew your subscription for such Service at the then applicable renewal fee. Services may be renewed by visiting magicjack.com/myaccount . You may also elect to auto-renew any Service after initial purchase or Registration by electing auto-renewal at https://my.magicjack.com/autorenew . Each Renewal Subscription Term for a Service that is not on auto-renewal will be the Subscription Term chosen by you at the time of renewal. If you do not renew the Subscription Term for a Service, we may immediately revoke the phone number associated with that Service, at our sole discretion, and your Service plan may be deemed obsolete or non-renewable upon the expiration of such Subscription Term. If you re-activate a Service after expiration of your most recent Subscription Term, you will begin a new Initial Subscription Term on the date of re-activation and you may not have access to any phone number previously associated with the re-activated Service. We reserve the right not to renew any Service in our sole discretion.
You must provide a valid method of payment (i.e. credit card, debit card, checking account, etc.) to purchase a Device and Service(s). You are responsible for keeping all of your billing information, including your payment method, up to date. We may receive and/or request automatic updates of your account information from the financial institution that issued your form of payment on file to keep your payment information current.
You expressly authorize us (or third parties acting on our behalf) to charge all applicable fees, taxes, administrative fees and other charges, including payment transaction fees for certain payment methods, to the payment method you have designated for the purchase of your Device and/or Service(s). You acknowledge and agree that we will not obtain any additional authorization from you for any recurring payments or automatic billing options. If you have any billing-related questions or want to stop a recurring payment from being charged to your designated payment method, call our toll-free billing support number 1-800-624-4252. We may suspend or terminate your use of Service(s) if you fail to provide a valid designated payment method upon request, or if we are unable for any reason to bill charges to your designated payment method.
IF YOUR SERVICE IS SET TO AUTO-RENEWAL, YOUR SERVICE WILL AUTOMATICALLY RENEW FOR RENEWAL SUBSCRIPTION TERM(S) UNLESS YOU TURN OFF AUTOMATIC RENEWAL OR CANCEL YOUR SUBSCRITPION ON OR PRIOR TO YOUR RENEWAL DATE (AS PROVIDED IN SECTION 8.b. ABOVE). IF YOU DO NOT TURN OFF AUTOMATIC RENEWAL OR CANCEL YOUR SUBSCRIPTION BEFORE YOUR RENEWAL DATE, YOUR ACCOUNT WILL AUTOMATICALLY BE CHARGED FOR THE RENEWED SERVICE(S) ON YOUR RENEWAL DATE AT THE RATES IN EFFECT AT THE TIME OF RENEWAL. A RENEWAL REMINDER EMAIL WILL BE SENT 30 DAYS PRIOR TO THE RENEWAL DATE FOR CUSTOMERS WITH AUTO-RENEWAL ENABLED TO REMIND THEM OF THE UPCOMING RENEWAL AND THE CURRENT RENEWAL PRICE.
All payments for your Device and Services must be made United States Dollars (USD). If you use a credit card issued by a non-US financial institution to pay for a purchase of a Device or Services, your financial institution may convert the charge and they may impose currency exchange fees.
You agree to be responsible for any applicable taxes, regulatory fees, administrative fees or shipping charges, now in force or enacted in the future in connection with your purchase of the Device and/or your use of the Services.
Services that are purchased by the minute (such as international calling minutes) will expire six months after the date of purchase.
You agree to hold harmless and indemnify us and our respective 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 Services (including but not limited to the cancellation, absence, failure or outage of the Services, including specifically any claims arising out of the failure to complete emergency service calls).
We reserve the right to modify the Services and Associated Software, temporarily or permanently, with or without notice or liability to you.
Failure to renew your Service subscription after the end of your Initial Subscription Term or any Renewal Subscription Term, may result in immediate termination of your Service(s) subscription and access to any Device or magicApp Service feature, subject to the Company’s sole discretion.
You agree that one or each of magicJack, LP, YMax and/or MVS, in their respective discretion, may immediately suspend and/or terminate this Agreement and your subscription to use the portion of the Services provided by the terminating party, without any refund, (a) if requested by law enforcement or other government agencies, (b) as a result of unexpected technical or security issues or problems, (c) if we reasonably suspect that you are using the Services in a fraudulent manner, (d) if your use of the Services violates any laws, regulations, or rules, or otherwise disrupts use of Services by others, (e) as a result of nonpayment of any fees, including subscription renewal fees, owed by you in connection with your use of the Services, (f) as a result of changes in any rules or regulations that affect our ability to provide the Services or any relevant portion thereof, or (g) your breach or violation of any of your obligations under this Agreement or incorporated agreements or guidelines. Termination of your subscription includes cancellation of your ability to use the Services, without refund and deletion of all related account information associated with or inside your account. Further, you agree that any termination of this Agreement under this Section 13 will be made in the Company’s sole discretion and that neither the Company nor any of its agents or affiliates will be liable to you or anybody else for termination of your subscription or this Agreement in accordance with this Section 13. If a phone number associated with your Service is transferred, the Services associated with that number will be terminated.
You may terminate your use of the Services at any time. Remaining balances will not be refunded.
Text messages and voicemails stored on the Company’s servers will be deleted as soon as practicable upon expiration or termination of the associated Services.
All provisions of this Agreement that must survive 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.
14. Intellectual Property Rights:
You acknowledge and agree that the Services and Associated 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 the Services is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You agree not to (and not to 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, rent, lease, loan, grant a security interest in, or otherwise use the Device, magicApp, Services or Associated Software, including without limitation, for the purpose of obtaining unauthorized access to any Device, the magicApp or the Services, except as specifically provided in this Agreement. We expressly reserve all rights in the magicApp, Services, Associated Software, Documentation, and all other materials provided by us hereunder not specifically granted you. You agree that all right, title and interest in the magicApp, Services, Associated Software, Documentation, and all other materials provided by us hereunder, any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with us (or third party suppliers, if applicable) and that the magicApp, Services, Associated Software, Documentation, and all other materials provided by us are provided to you on a subscription basis only for the term of your subscription.
15. Agreement to Receive Electronic Communications:
By Registering for Service, you consent to receive notifications from us electronically to the email address you provide to us upon Registration or a subsequent update to your Registration information through https://my.magicjack.com/autorenew. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or by mail. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form.
16. Limitation of Liability:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL THE COMPANY (OR ITS AGENT, EMPLOYEES, CONTRACTORS OR AFFILIATES) BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR WORK STOPPAGE, LOSS OR DISCLOSURE OF SENSITIVE OR CONFIDENTIAL INFORMATION, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES; (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO THE COMPANY IN CONNECTION WITH YOUR DEVICE, AND/OR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. THIS PROVISION IS NOT INTENDED TO EXCLUDE LIABILITY THAT WE MAY NOT EXCLUDE UNDER APPLICABLE LAW.
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 Services or Associated Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. Neither the Services or Associated Software, nor their respective 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 Services or Associated 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 United States Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and/or the United States Department of Commerce, Bureau of Export Administration Denied Persons List or Entity List. You acknowledge that the Services and Associated Software contains encryption technology, the export of which is restricted by the United States and certain foreign laws. By downloading the magicApp or the Associated Software or using any Device and Associated Software you agree to this section and represent and warrant that you comply with these conditions.
18. Automatic Updates:
The Services, Devices or magicApp may communicate with our servers to check for available updates to the Services or Associated Software, including bug fixes, patches, missing plug-ins and new versions (collectively, “Updates”), however we have no obligation to provide you with such Updates and we do so solely at our option. To ensure that you have the most recent updates for the Services and Associated Software you should periodically visit https://www.magicJack.com to check for updates. We will have no liability for your inability to use certain features of the Services or reduced Services performance associated with your failure to install available Updates. We may send and access the Device or cookies on your computer. A “cookie” is a small file containing information about you that is sent to your computer when you visit a website. When you visit the website again, the cookie allows that site to recognize such things as your browser, user preferences and other information to optimize the performance of the Services. During the Update process, the Associated Software may send to us or our partners a request for the latest Associated Software version. By installing the Services and/or Associated Software, you hereby agree to allow us the option to automatically provide Updates from our and/or our partners’ servers.
19. Representations and Warranties:
You represent and warrant that (a) all of the information provided by you to us to use the Service 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.
20. Entire Agreement:
You agree that you may not assign this Agreement to any third party and that we may assign this Agreement, without your consent, to any person including, without limitation, (i) to any person that controls, is controlled by, or is under common control with us, or (ii) pursuant to a transfer of all or substantially all of our business or assets, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this section shall be void.
22. Governing Law:
The Company and you agree that this Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Florida, without reference to its conflicts of laws principles, other than in connection with a Dispute or Claim settled by arbitration, for which governing law will be determined in accordance with Section 25 of this Agreement.
23. Waiver and Severability of Terms:
Even if we do not exercise or enforce any or all of our respective rights or any provision of this Agreement it does not mean that we waive the right or provision, and we may 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.
24. Statute of Limitations:
Subject to Section 26 of this Agreement, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Service or this Agreement must be filed within ninety days after such claim or cause of action arose or be forever barred unless arbitrated in accordance with the provisions of Section 25 of this Agreement.
25. Mandatory Binding Arbitration; Forum:
This section describes what rights you and The Company possess if you and The Company have a dispute.
- Providing Notice of a Claim.
- You and the Company agree to arbitrate all disputes and claims between us (“Disputes or Claims”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- Disputes or Claims related in any way to the Device, magicApp, Services, Associated Software, billing, privacy, advertising, or the Company’s communications with you;
- Disputes or Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- Disputes or Claims that arose before your Registration of your Device and/or Service;
- Disputes or Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- Disputes or Claims that may arise after the termination of your Service(s).
- A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). Notice to The Company must be sent to The Company’s customer service address at: magicJack – 931 Village Blvd, Suite 905, Box No. 386, West Palm Beach, FL 33409.
- The Notice must include (a) the nature and basis of your Dispute or Claim; (b) identification or enclosure of all relevant documents and information; and (c) a description of the specific relief that you seek from the Company.
- Providing the Company an Opportunity to Informally Resolve Your Dispute.
- Before you may pursue or participate in any Dispute or Claim (or raise such Dispute or Claim as a defense) in small claims court or in arbitration against the Company, you must first send the Notice described above, and you must allow the Company a reasonable opportunity to resolve your Dispute or Claim.
- After the Company receives your Notice, you and the Company agree to negotiate in good faith with each other to try to resolve your Dispute or Claim.
- If you and the Company do not reach a resolution of your Dispute or Claim within thirty (30) days after the Company receives your written Notice, you may pursue your Dispute or Claim in arbitration or, solely to the extent specifically provided below, in small claims court.
- Agreement to Participate in Binding Arbitration.
- If you and the Company cannot reach an informal resolution to the Dispute or Claim within thirty (30) days after the Company’s receipt of your Notice, you or the Company may commence an arbitration proceeding by sending an arbitration demand (“Arbitration Demand“) to the following address: magicJack – 931 Village Blvd, Suite 905, Box No. 386, West Palm Beach, FL 33409. The parties agree to arbitrate any Dispute or Claim between the parties, except to the extent either party chooses to instead pursue the Dispute or Claim in small claims court as provided below.
- Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
- Except as otherwise provided herein, upon you or the Company filing an Arbitration Demand, the Company will pay all filing, administration, and arbitrator fees, unless your Dispute or Claim exceeds $75,000 (exclusive of any filing, administration, arbitrator, or attorneys’ fees or other fees or expenses). If you initiate an arbitration in which you seek more than $75,000 (exclusive of any filing, administration, arbitrator, or attorneys’ fees or other fees or expenses) in damages, the American Arbitration Association’s (“AAA“) Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules“) will govern the payment of these fees.
- The AAA Rules, as modified by these Terms of Service, will govern the arbitration. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879.
- If your Dispute or Claim is for $10,000 or less (exclusive of any filing, administration, arbitrator, or attorneys’ fees or other fees or expenses), the Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing under the AAA Rules. If your Dispute or Claim exceeds $10,000 (exclusive of any filing, administration, arbitrator, or attorneys’ fees or other fees or expenses), the right to a hearing will be determined by the AAA Rules.
- Unless the Company and you agree otherwise in writing, any arbitration hearings will take place in the county (or parish) in which your most recent billing address (as provided to the Company) is located.
- One arbitrator, who is selected under the AAA Rules and who has expertise in consumer disputes in the wireless industry, will conduct the arbitration. If no arbitrator possessing such expertise is available, then the arbitration will be conducted by a single arbitrator who is selected by the mutual written approval of you and the Company. Except as allowed under applicable law and the AAA Rules, the decisions of the arbitrator will be binding and conclusive on all parties. Judgment upon any award of the arbitrator may be entered by any court of competent jurisdiction. This provision will be specifically enforceable in any court. THE ARBITRATOR MUST FOLLOW THESE TERMS OF SERVICE AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS’ FEES).
- All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide.
- Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
- Except as otherwise provided herein, the Company will pay all filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your Dispute or Claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. Also, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of fees will be governed by the AAA Rules.
- The Company agrees that it will not seek any award of attorneys’ fees, even if it is entitled to such fees.
- The arbitrator may make any determinations and resolve any Dispute or Claim as to the payment and reimbursement of fees, the Alternative Payment, or the Attorney Fee Premium at any time during the proceeding and within fourteen (14) days after the arbitrator’s final ruling on the merits.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
- YOU AND THE COMPANY AGREE THAT:
- ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. NEITHER YOU NOR THE COMPANY SHALL BE A MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING, AND THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL DISPUTE OR CLAIM.
- UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S DISPUTES OR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
- THE COMPANY DOES NOT CONSENT TO CLASS ARBITRATION. ACCORDINGLY, IF A COURT REFUSES TO ENFORCE THE ABOVE PROVISIONS REGARDING CLASS OR REPRESENTATIVE ACTIONS, THEN THIS AGREEMENT TO ARBITRATE SHALL BE UNENFORCEABLE AS TO YOU. WHETHER A DISPUTE OR CLAIM PROCEEDS IN COURT OR IN ARBITRATION, YOU AND THE COMPANY HEREBY WAIVE ANY RIGHT TO A JURY TRIAL.
- This arbitration agreement covers any Dispute or Claim arising out of or relating to any aspect of the relationship between you and the Company, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, even if the Dispute or Claim arises or may arise before or after the period(s) during which you are receiving the Company Services. This Agreement evidences a transaction in interstate commerce, and the Federal Arbitration Act governs the interpretation and enforcement of this section.
- You or the Company must bring any Dispute or Claim arising out of or related to the Rules, or the relationship between you and the Company, within two (2) years after the Dispute or Claim arises, or the Dispute or Claim will be permanently barred. To the extent the law applicable under the Governing Law section below makes this limitations period unenforceable with respect to any Dispute(s) or Claim(s), then the statutes of limitations of the state whose laws govern the Rules under the Governing Law section below shall apply.
- The Company may make changes to this arbitration provision during the term of our services to you. You may reject any material changes by sending the Company written objection within thirty (30) days of the change to the magicJack – 931 Village Blvd, Suite 905, Box No. 386, West Palm Beach, FL 33409, Attention Legal Department. By rejecting any future material change, you are agreeing to arbitrate in accordance with the language of this provision.
- Small Claims Court. You may choose to pursue your Dispute or Claim in small claims court rather than by arbitration if your Dispute or Claim qualifies for small claims court in a location where jurisdiction and venue over you and the Company is proper. If you choose to pursue your Dispute or Claim in small claims court, the limitations of liability set forth in Section 16 of this Agreement shall apply to such Dispute or Claim.
We make no warranty regarding 911 access that may be provided through the Devices. All calls made to 911 are made at the caller’s risk.
magicJack, LP warrants the Device against manufacturing defects under normal use and conditions, for a period of one (1) year for the original purchase date. Should you experience a technical problem with your Device during the warranty period and we determine you need a replacement, we will ship you a replacement Device without charge to you (other than shipping costs for your return of your Device), provided that you comply with the terms of this Section. Any replacement Device will have a warranty period equal to the remainder of the warranty period for your original Device. This warranty extends only to the original purchaser of the Device in question. Return shipping and handling fees are to be paid for by the customer.
In the event magicJack, LP receives notice during the warranty period that your Device is defective, your sole and exclusive remedy, and magicJack, LP’s sole and exclusive liability, shall be for magicJack, LP, at its sole option, to either repair or replace the Device or refund the purchase price in accordance with this limited warranty. Devices replaced under the terms of any such warranty may be refurbished or new equipment substituted at the option of magicJack, LP. Actual delivery times may vary depending on your location.
To avoid being charged for your replacement Device, you must:
(1) obtain a return material authorization (“RMA”) number (returns without an RMA number will be rejected by magicJack, LP);
(2) ship the items being returned to magicJack, LP, together with a written description of the claimed defect, shipping cost will be paid by you; and
(3) pay any fees required as communicated at our website (www.magicjack.com).
The defective Device must be received by magicJack within fifteen (15) days of your receipt of your replacement Device or your credit card on file will be charged the full price of the replacement device (MSRP $25.00) plus associated taxes, shipping and handling.
This warranty does not include:
- Any condition resulting from incorrect or inadequate maintenance or care
- Damage resulting from misuse, abuse, negligence, accidents or shipping damage
- Dissatisfaction due to buyer’s remorse
- Damages incurred during transportation
- Purchase of a used device
EXCEPT AS THIS AGREEMENT EXPRESSLY STATES, AND EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 26, AND THE MATERIALS ACCOMPANYING YOUR DEVICE, WE MAKE NO EXPRESS WARRANTY REGARDING THE DEVICES, MAGICAPP, SERVICES OR ASSOCIATED SOFTWARE AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE ALSO MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
27. iOS/magicApp Specific Provisions
The following provisions apply to magicApp Services downloaded from the Iphone App Store:
- You acknowledge that this Agreement is between you and the Companies and not with Apple, Inc. or any of its affiliates (collectively, “Apple”) and that the Companies, and not Apple. are solely responsible for the magicApp Service and Associated Software.
- The license granted to you hereunder for use of the magicApp Service and Associated Software is limited to a personal, non-transferable, non-assignable, revocable and non-exclusive right to use the magicApp Service and Associated Software on any iPhone, iPod touch or iPad owned or controlled by you for the relevant subscription period and subject to the terms and conditions set forth in this Agreement.
- The Companies, and not Apple, are solely responsible for providing maintenance and support services with respect to the magicApp Service and the Associated Software. You acknowledge and agree that Apple has no obligation whatsoever to provide any such maintenance and/or support.
- The Companies, and not Apple, are solely responsible for the breach of any warranties specifically set forth in this Agreement. If the magicApp Service or Associated Software fails to conform with any such warranties, including your right to a refund under Section 2 of this Agreement, you may notify Apple of such non-conformity and Apple will refund the purchase price paid by you for the magicApp and, to the maximum extent permissible by law, Apple shall have no other liability to you arising from such non-conformity, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such warranty will be your sole responsibility.
- You acknowledge that Apple is not responsible for any claims you may have relating to the magicApp Service or Associated Software, including without limitation, (i) product liability claims, (ii) any claim that the magicApp Service or Associated Software fails to conform to any applicable legal or regulatory requirement, or (iii) any claims arising under consumer protection or similar legislation.
- You acknowledge and agree that, in the event of any third party claim that the magicApp Service or Associated Software, or your use and possession of the same, infringes a third-party’s intellectual property rights, the Companies, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such claim.
- You acknowledge and agree that Apple is a third party beneficiary of this Agreement and, upon acceptance by you of this Agreement, Apple will have the right (and is deemed to have accepted such right) to enforce this Agreement against you as a third party beneficiary hereof.