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Canadian Terms of Service and Software License Agreement for magicJack, LP and YMAX Communications Corporation and VocalTec Communications Corp.
The magicJack device is brought to you by magicJack, LP, a limited partnership organized under the laws of Delaware. The magicTalk software and server access license (magicTalk) is brought to you by VocalTec Communications, LTD. (VocalTec). Before you begin using the magicJack device, magicTalk 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 our Privacy Policy [link], 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 CHECKING THE BOX NEXT TO "I HAVE READ AND AGREE TO THE TERMS OF SERVICE" DURING REGISTRATION, OR BY ACTUALLY USING THE SERVICES, 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, magicTalk AND/OR DOWNLOAD OR USE THE SOFTWARE. FURTHER, YOU MAY NOT USE THE MAGICJACK DEVICE, magicTalk AND/OR DOWNLOAD OR USE THE SOFTWARE AND MAY NOT ACCEPT THE TERMS IF (A) YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MAGICJACK, LP, (MAGICJACK), YMAX COMMUNICATIONS CORPORATION (YMAX) VOCALTEC COMMUNICATIONS, LTD (VOCALTEC), OR (B) YOU ARE A PERSON BARRED FROM RECEIVING THE SOFTWARE OR SERVICES UNDER THE LAWS OF THE UNITED STATES OR OTHER COUNTRIES INCLUDING THE COUNTRY IN WHICH YOU ARE RESIDENT OR FROM WHICH YOU USE THE MAGICJACK DEVICE, magicTalk AND/OR DOWNLOAD OR USE THE SOFTWARE.
Although we may choose to notify you when changes are made to the Agreement, you should periodically review the most up-to-date version, which you can always find at http://www.magicJack.com/intl/en-ca/tos and at magicJack and/or YMAX Communications Corporation AND/0R VOCALTEC, COMMUNICATIONS, LTD may, in its sole discretion, modify or revise the Agreement 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, magicTalk and Software will also be subject to this Agreement.
This is an agreement between magicJack, LP, (magicJack), YMAX Communications Corporation (YMAX) VOCALTEC COMMUNICATIONS, LTD (VocalTec) 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, magicTalk and Software Works
The magicJack device, Software and magicTalk enables a multimedia, feature rich service that will allow users access to a variety of exciting content and services. The magicJack device, Software and magicTalk are flexible®, simple, yet full of features and content for the Internet savvy consumer. There are several services that are available today using these products and many features will follow. The number of features will continue to grow as the magicJack device and magicTalk become the premium device and/or software for Internet users. 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, or magicTalk you must first download the magicJack Software and/or magicTalk software. Some enhanced features also require you to purchase the magicJack device or magicTalk Preferred plan. In addition, you need a computer running Microsoft® Windows (XP, Vista, 7) or Intel-based Mac® 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. We cannot guarantee that the magicJack device or magicTalk 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 or magicTalk, 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, Software and magicTalk 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 through magicJack and magicTalk provide a multimedia experience, which includes a voice over Internet information service feature.
2. Ownership and Risk of Loss of magicJack Device
You will own the magicJack device, but not the Software used with the device or magicTalk, 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 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 placing your order for 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 or exchange 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 of purchase and you must pay the expenses of shipping. Request your RMA here http://my.magicJack.com/returns.html. 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:
When you first register, as part of the available features, you may elect to choose a unique phone number, which will allow you to receive free phone calls over the Internet. The phone number chosen will be allocated provided we determine 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. YMAX Communications Corporation may be the provider of your phone number and/or inbound calls. We do 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. You may be able to take (or "port") your number to another service provider. if you ask your new service provider to port a number from us, upon the request of that service provider, we will terminate our service for that number after magicJack has been notified by the relevant provider that the port has been successfully completed. Once your number has been ported and your service has been terminated, you remain responsible for all charges and fees through to the end of that billing cycle (including any cancellation fees). If the port is not successful for any reason, your service and your agreement will not terminate; you will remain a magicJack custome; and you will remain responsible for all charges and fees associated with your magicJack service. We may, without any liability, refuse, change or terminate any phone number at anytime. If we change the phone number that has been allocated to you, we 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. We will not be liable for any damages resulting from the change of the phone number.
b) Outgoing Calls:
Once you have registered your magicJack you have agreed to these Terms of Service. 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 magicJack device users located anywhere in the world, and to subscribers on traditional telephone networks or wireless networks in Canada and the United States. YMAX Communications Corporation may be the provider of outbound calling services to subscribers on traditional telephone or wireless networks in the United States, for toll free calls, and/or for international calls. 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:
The magicJack device allows you to receive for free incoming calls using the phone number you have chosen. If you choose outgoing service, the magicJack device allows you to make free outgoing calls to other magicJack/magicTalk device users located anywhere in the world, and to subscribers on traditional telephone networks or cellular networks in Canada and the United States. We may provide for a fee, premium prepaid services, which may be powered by YMAX Communications Corp. ("YMAX"), including inbound calling, International Calling and Conferencing services and the rates for those services will be governed by listed price lists or tariffs. magicJack and/or Vocal Tec may make available to you, for an additional fee, enhanced versions of the magic Jack or magicTalk Software ("Upgraded Software") that provide new features and functions. magicTalk has a Basic plan which is free and a Preferred plan which is not. magicTalk Basic provides you with a software license that enables calls to other magicJack and magicTalk users around the world while magicTalk Preferred provides you also with a server access license which enables you to make calls as well to landline and cell phone users in the US and Canada.
5. Emergency calls
Important limitations on 9-1-1 service: We offer a form of 9-1-1 service that is similar to traditional 9-1-1 service but has some important differences and limitations when compared with enhanced 9-1-1 service (E911) available in certain locations in conjunction with traditional telephone service. With both traditional 9-1-1 and E911 service, your call is sent directly to the nearest emergency response centre. In addition, with E911 service, your callback number and address are visible to the emergency response centre call–taker. With magicJack's 9-1-1 service, our third-party operators route your call to the proper emergency services agency anywhere in the country using the 9-1-1 network, but your phone number and location are not visible to the emergency response centre call-taker. You should be prepared to provide or confirm your address and call-back number with the operator. Do not hang up unless told directly to do so and if disconnected, dial 9-1-1 again.
Register your physical location with us: You should ensure your location information, when registered with magicJack, is kept current at all times. In case you are not able to speak during the 9-1-1 call, the call taker will dispatch emergency response vehicles to your last registered address. Remember that you need to update this information if you move your device to a different location and/or if you add a new line to your account. magicJack's 9-1-1 service is activated when you subscribe to magicJack service.
Power or broadband outages: Remember that magicJack's 9-1-1 service will not function in the event of a power or broadband outage or if your broadband, ISP or magicJack service is suspended or terminated.
Tell other household residents and guests about these limitations: You should inform any household residents, guests and other persons who may be present at the physical location where you use the magicJack service of the important differences in, and limitations of, magicJack's 9-1-1 service as compared with E911 service, as set out above.
Limitation of Liability and Indemnification: We limit our liability to you in respect of our 9-1-1 service as we do not have any control over whether, or the manner in which, calls using our 9-1-1 service are answered or addressed by any local emergency response centre. We disclaim all responsibility for the conduct of local emergency response centres and other third party emergency calling centres. We rely on third parties to assist us in routing 9-1-1 calls to local emergency response centres and to a national emergency calling centre. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither magicJack nor its offers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action arising from, or relating to, our 9-1-1 service unless such claims or causes of action arose from our gross negligence, recklessness or wilfull misconduct. You shall defend, indemnify, and hold harmless magicJack, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, legal fees and expenses) by, or on behalf of, you or any third party relating to the absence, failure or outage of the service, including 9-1-1 services, incorrectly routed 9-1-1 calls, and/or the inability of any user of the Service to be able to use 911 service or to access emergency service personnel.
Alternate arrangements for 9-1-1: If you are not comfortable with the limitations of our 9-1-1 service, you should consider having an alternate means of accessing traditional 9-1-1 or E9-1-1 services.
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 and magicTalk in compliance with all applicable local, provincial, state, national, and international laws, rules and regulations. Among other things you will not agree to, and will not authorize or encourage any third party to: (a) prevent others from using their magicJack devices, and/or magicTalk (b) use the magicJack device or magicTalk for any fraudulent or inappropriate purpose, or (c) remove any copyright, trademark or other proprietary rights notices contained in or on the magicJack device and/or magicTalk, including those of any of our business associates, from whom we may have licensed certain components used in the magicJack device and or magicTalk. Violation of any of these obligations may result in immediate termination of this Agreement, and may subject you to provincial, state and federal penalties and other legal consequences. magicJack and/or VocalTec reserves the right, but will have no obligation, to investigate your use of the magicJack device and/or magicTalk 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. magicJack and/or VocalTec reserves the right to block calls to numbers that abuse its services such as, but not limited to, traffic stimulation numbers. If magicJack and/or VocalTec sees excessive use, including but not limited to, a customer whose usage is twenty (20) times more than the average magicJack or magicTalk customer usage, or a customer who calls more than 50 different telephone numbers per day, or systematic or intentional misuse, it reserves the right, in our sole discretion, to terminate your use of the magicJack device and/or Software and/or magicTalk 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 a consecutive 90 days. In the event that we reclaim a phone number and your software license is still active, you may choose another phone number.
7. No Resale
Unless expressly authorized in writing by magicJack and/or VocalTec, you agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any purposes any portion of the magicJack device magicTalk 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 and VocalTec grants you a personal, non-transferable and non-exclusive right and license to use magicTalk 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, Software and magicTalk. The initial term of this license is for one year and may be renewed upon the one-year anniversary of your magicJack device, Software and/or magicTalk order or purchase (for an additional fee) for additional terms. If you do not renew your license within sixty days of expiration, we may revoke the phone number, at our sole discretion. You agree not to modify the Software or magicTalk 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 or magicTalk. You agree not to access the magicJack and/or YMAX services or magicTalk by any means other than through the Software and the magicJack device and magicTalk.
9. Payment
Use of the magicJack device and/or magicTalk is free. Your purchase of the magicJack device or download of magicTalk and registration of the magicJack device and/or magicTalk gives you a license to use the magicJack and the Software and/or magicTalk for one year. To continue using the magicJack device and the Software and/or magicTalk after the end of the initial one-year term, you must renew your Software access license for additional one-year terms at magicJack's or VocalTec's (if you have chosen a magicTalk Premium plan or any plan that requires payment) 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, magicTalk or YMAX feature. You will not be able to use the magicJack device or magicTalk premium features and your right to use any phone number allocated to you will be canceled. For your convenience, magicJack has an auto-renewal program. The form of payment you have on file may be automatically charged on the day before the last business day of the current term for the prevailing renewal fee. We may receive and/or request automatic updates of your account information from the financial institution that issued your form of payment on file in order to keep your payment information current.
You can elect to
disable this auto renew feature at any time by going to
http://my.magicJack.com. 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, magicTalk and YMAX services.
10. Privacy Policy
We collect certain personal information about you, including your registration data, 911 registered address, billing and credit card information, contact lists and service usage records (call duration, call location, number calling and number called) and survey data you provide voluntarily. In addition, the Software mirrors your web browser, allowing magicJack to collect information about the websites you visit and Internet searches you conduct. You understand that by accepting this Agreement and using the services you consent to our collection, use and disclosure of your personal information, as set forth in this Agreement..
We use your personal information only for the following purposes:
- Providing Internet communications services to you;
- Administering your account (including billing, automatic-renewals, and monitoring your account for misuse as described in paragraph 6 "Proper Use")
- Responding to your requests for customer service;
- Providing you a newsletter detailing new product offerings and promotions from magicJack;
- Providing technical support; and
- Providing advertisements and classifieds of relevance to you, based on your service usage records and information collected from your web browser (as described in paragraph 12 "Advertisements").
You acknowledge, consent and agree that your personal information may be transferred to and from Canada and/or other countries for storage, processing and use by magicJack, and its affiliates. Be advised that your personal information may be made available, without your knowledge, to the United States government or its agencies, or those of governments in any other country where we store or process personal information, under a lawful order made in that country.
You acknowledge, consent and agree that we may access, preserve and disclose your personal information, if required to do so by law, or if we believe in good faith that such disclosure is necessary to comply with relevant laws or to respond to subpoenas or warrants served.
You understand that the use, technical processing and transmission of the magicJack device may involve the transmission of personal information (including your calls) and other data over various networks. While we take reasonable precautions to keep your personal information secure; including organizational, physical and technical precautions, unfortunately no transmission over the Internet or method of storing data can be guaranteed to be 100% secure.
When your personal information is no longer required for the purposes set out above, we will destroy or render this information non-identifiable (that is, alter the information so that it cannot be traced back to, or associated with, a specific individual).
You are entitled to access, verify, amend and/or correct your personal information. Upon request to our Privacy Officer (privacy@ymaxcorp.com/ 1-888-370-5005, we will provide you with access to the personal information we have collected about you.
If you have a concern regarding the collection, use and disclosure of your personal information by magicJack, please contact our Privacy Officer. Your concern will be investigated and you will be notified as soon as possible of the outcome of the investigation and any action required as a result.
11. Privacy Safeguards
You understand and agree that the following privacy safeguards are not available with the magicJack device, magicTalk and Software: delivery of the privacy indicator when invoked by an end-customer; provision of automated universal per-call blocking of calling line identification; provision of per-line call display blocking to qualified end-customers; disallowance of Call Return to a blocked number; enforcement of certain restrictions on automatic dialing devices and unsolicited faxes where applicable; and provision of universal Call Trace.
12. Advertisements
You also understand and agree that use of the magicJack device, magicTalk and Software will include advertisements. Advertisements will be served through the magicPage™ Software or the magicJack or magicTalk softphone - the software/softphone 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 and your registration information in order to improve the relevance of the ads. We do not provide any personal information to our advertisers or third parties. VocalTec and its subsidiaries have 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 or magicTalk. You also understand and agree that use of the magicJack device, magicTalk 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.
13. Indemnification
You agree to hold harmless and indemnify VocalTec magicJack and YMAX, and their 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 and/or YMAX services and/ or magicTalk (including but not limited to the cancellation, absence, failure or outage of the magicJack device and/or magicTalk, including specifically any claims arising out of the failure to complete emergency service calls). In such a case, magicJack and/or VocalTec will provide you with written notice of such claim, suit or action.
14. Modification
magicJack and/or VocalTec reserve the right to modify or discontinue the magicJack device, magicTalk and Software, temporarily or permanently, with or without notice to you. YMAX reserves the right to modify or discontinue its services, 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, magicTalk or Software and/or YMAX services.
15. Termination
You agree that
magicJack and/or YMAX and/or VocalTec, in its sole discretion, may immediately
terminate this Agreement and your license to use the magicJack device,
magicTalk and Software and/or YMAX services, without any refund. magicJack and/or YMAX and/or magicTalk 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, magicTalk or Software or
YMAX services in violation of any laws, regulations, or rules, or in any manner
that disrupts use of YMAX services or the magicJack device, magicTalk or
Software by others, or (e) nonpayment of any fees, including license renewal
fees, owed by you in connection with the magicJack Software or magicTalk, (f)
changes in any rules or regulations that affect our ability to provide the
magicJack device, magicTalk or the Software or YMAX services. Termination of
your license includes cancellation of your ability to use the magicJack device,
magicTalk and the Software, without refund. Further, you agree that any
termination of this Agreement will be made in magicJack's and/or YMAX's and/or
VocalTec's sole discretion and that neither magicJack nor YMAX nor VocalTec nor
any of its agents or affiliates will be liable to you or anybody else for
termination of your license or this Agreement. We may offer Vanity
numbers for an annual fee. These numbers are non transferable. We
have the right to revoke your usage of the vanity number at any time and for
any reason. If a number is transferred, the magicJack license or Premium
magicTalk license will be terminated.
You may terminate the use of the magicJack device or magicTalk at any
time. Remaining balances will not be refunded.
All provisions that 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. Intellectual Property Rights
You acknowledge and agree that the magicJack device , Software and magicTalk 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, VocalTec or advertisers, you agree not to reverse engineer, modify, rent, lease, loan, sell, distribute or create derivative works based on the magicJack device, magicTalk or the Software, in whole or in part.
17. No Warranties
YMAX services and magicTalk and 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.
VocalTec and YMAX and magicJack make no warranty regarding the optional free 911 emergency dialing feature provided on the magicJack device. All calls made using the 911 emergency dialing feature are made at the caller's risk. VocalTec and YMAX and magicJack make no warranty with respect to any services provided by third parties, including, but not limited to,, emergency 9-1-1 routing services.
YMAX and magicJack and VocalTec make no warranty as to the completion, clarity, or overall quality of any particular call made using the service. YMAX and magicJack and VocalTec make no warranty that any errors in the software will be corrected.
YMAX and magicJack and VocalTec make 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 YMAX or magicJack or VocalTec or through or from the service shall create any warranty not expressly stated in this agreement.
18. 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.
YMAX 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, YMAX 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 YMAX 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.
VocalTec 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 magicTalk download and
Software license during the year in which such damages occur. To the
maximum extent permitted by applicable law, VocalTec 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,
magicTalk or Software, even if VocalTec 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.
19. Export/Import
You agree to comply with all export and import laws and restrictions and regulations of Canada and foreign countries, and, without limiting the generality of the foregoing, you agree not to export, re-export or import the magicJack device, magicTalk or Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. You acknowledge that the Software contains encryption technology, the export of which is restricted by certain foreign laws. By downloading magicTalk or the Software or using the magicJack device, you agree to this section and represent and warrant that you comply with these conditions.
20. Automatic Updates
The magicJack device, magicTalk and/or Software may communicate with magicJack's and VocalTec's servers to check for available updates to the Software and/or magicPage™, and/or magicTalk including bug fixes, patches, missing plug-ins and new versions (collectively, "Updates"), however magicJack and VocalTec have 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 and http://www.magicTalk.com to check for updates. magicJack and VocalTec may send and access magicJack or magicTalk 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 magicJack and magicTalk. During the Update process, the Software may send to magicJack and VocalTec or its partners a request for the latest Software version. By installing the magicJack and/or magicTalk Software, you hereby agree to allow magicJack and VocalTec the option to automatically provide Updates from magicJack, VocalTec and/or its partners' servers.
21. Representations and Warranties
You represent and warrant that (a) all of the information provided by you to magicJack and VocalTec to use the magicJack device, magicTalk 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.
22. Entire Agreement
This Agreement is the entire agreement between you and magicJack and YMAX and VocalTec and governs your use of the magicJack device, magicTalk and Software and items and/or services which may be provided by YMAX, it trumps any prior agreements between you and magicJack and/or VocalTec and/or YMAX. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other magicJack or magicTalk services, affiliate services, third-party content or third-party software.
23. Waiver and Severability of Terms
Even if magicJack and/or magicTalk and/or YMAX do not exercise or enforce any or all of its 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
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, magicTalk or Software or services of this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
25. 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 and/or provisions of your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the magicJack device, magicTalk or Software and items and/or services provided by YMAX 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.
26. Five-Year Warranty or Two-Year Warranty
magicJack may (but shall not be required to), offer for purchase, from time to time, a Five-Year Warranty or a Two-Year Warranty for the magicJack. This Five-Year Warranty or a Two-Year Warranty is limited and warrants that for a period of five (5) or two (2) years respectively from the purchase of the magicJack, the magicJack Hardware shall be free of defects in material and workmanship under normal authorized use consistent with the product instructions. This product warranty extends only to the original purchaser. In the event that magicJack receives notice during the warranty period that any Hardware does not conform to its warranty, Customer's sole and exclusive remedy, and magicJack's sole and exclusive liability, shall be for magicJack, at its sole option, to either repair or replace the non-conforming Hardware or refund the purchase price in accordance with this limited warranty. Hardware replaced under the terms of any such warranty may be refurbished or new equipment substituted at the option of magicJack. Actual delivery times may vary depending on the customer location. As a condition precedent to the Five year Warranty or the Two-Year Warranty, the end user must: 1. Obtain a return material authorization (RMA) , which will include an RMA number (available at the magicJack website). Returns without an RMA number may be rejected by magicJack. 2. Ship the items being returned to magicJack, freight prepaid, together with a written description of the claimed defect. 3. Pack the items being returned in the original packing carton and with the original proof of purchase. 4. Pay for shipping and handling fees for the shipping of the replacement magicJack.
27. One Year Insurance Plan
magicJack may (but shall not be required to), offer for purchase, from time to time, a One Year Replacement Insurance plan for the magicJack. This Replacement Insurance plan is limited and insures your originally purchased magicJack for one full year from date of purchase. This product warranty extends only to the original purchaser. In the event that magicJack receives notice during the warranty period that any Hardware does not conform to its warranty, Customer's sole and exclusive remedy, and magicJack's sole and exclusive liability, shall be for magicJack, at its sole option, to either repair or replace the Hardware or refund the purchase price in accordance with this limited warranty. Hardware replaced under the terms of any such warranty may be refurbished or new equipment substituted at the option of magicJack. Actual delivery times may vary depending on the customer location. As a condition precedent to the One Year Replacement Insurance plan, the end user must: 1. Obtain a return material authorization (RMA) , which will include an RMA number (available at the magicJack website). Returns without an RMA number may be rejected by magicJack. 2. Ship the items being returned to magicJack, freight prepaid, together with a written description of the reason for replacement request. 3. Pack the items being returned in the original packing carton and with the original proof of purchase. 4. Pay for shipping and handling fees for the shipping of the replacement magicJack.
