Ok people, I have read a lot of complaints about this company and product. Here is the terms of service listed. Almost every complaint I read is addressed in their terms of service.
Terms of Service:
1. Description of How the magicJack® Device and Software Works
The magicJack device and Software enables a multimedia, feature rich service that will allow users access to a variety of exciting content and services. The magicJack device and Software are flexible, simple, yet full of features and content for the Internet savvy consumer. There are several services that are available today using your magicJack device and many features will follow. The number of features will continue to grow as the magicJack device becomes the premium device for Internet users. Among other things, as described fully below, the magicJack device allows you to receive free in-bound communications from other magicJack device users anywhere in the world while connected to the magicJack service. If you so choose, you may elect to use the magicJack device to make free out-bound communications to other magicJack device users and other non-magicJack device users.
To enable your use of the magicJack device, you must first download the magicJack Software. Some enhanced features also require you to purchase the magicJack device. In addition, you need a computer running 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 can not guarantee that the magicJack device will always function without disruptions, delay or other imperfections. There may be power outages or Internet service disruptions and you may experience other disruptions unrelated to the magicJack device, which will interfere with the quality of your communication. Although once you have purchased a magicJack device or downloaded the Software, use of the magicJack device and/or the Software is free, you are responsible for getting the things you need to make the magicJack device work, and that may involve third-party fees (such as Internet service provider or Internet airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for any additional equipment necessary (such as a communications adaptor or a headset), to use the magicJack device or the Software. The magicJack device may not be compatible with non-voice communications equipment, including but not limited to, home security systems, medical monitoring equipment, fax machines, satellite television systems, or computer modems.
The goods and services offered by magicJack provide a multimedia experience which includes a voice over Internet information service feature. It is not a telecommunications service and is subject to different regulatory treatment from telecommunications services.
2. Ownership and Risk of Loss of magicJack Device
You will own the magicJack device, but not the Software included on the device, which is licensed to you under this Agreement for a one year term, and bear all risk of loss of, theft of, casualty to or damage to the magicJack device, from the time it is shipped 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, 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; and the phone number is not portable to other service providers. 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 device 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 the United States. You will not have the ability to call any number that would require the addition of any charges to your phone bill, such as 900 or 976 numbers or any other "fee per call" type service.
4. What Is Free and What is Not:
The magicJack device allows you to receive for free incoming calls using the phone number you have chosen. If you choose outgoing service, the magicJack device allows you to make free outgoing calls to other magicJack device users located anywhere in the world, and the subscribers on traditional telephone networks or cellular networks in the United States. We may provide for a fee, premium prepaid services, 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 may make available to you, for an additional fee, enhanced versions of the magicJack Software ("Upgraded Software") which provide new features and functions.
5. Emergency calls
The services are not traditional telephone services, so we are not required to provide you with access to emergency 911, E911, or similar access to emergency services. However, when you register to use the magicJack device, you will be enrolled in the voluntary 911 service, if you register a U.S. service address. magicJack will take commercially reasonable steps to provide you with emergency service calling. This requires your cooperation. Initially, we will use the address you give us when you register the magicJack. You must update this address whenever you change the location from which you place your calls. You agree that each and every time you change the physical location of where you are using the magicJack device, you will update the Emergency Services record at http://my.magicjack.com and provide the new address where you are using the magicJack device. If you fail to do so the free voluntary 911 service will not work.
You understand and agree that the 911 emergency dialing feature is provided to you as a convenience. magicJack and/or YMAX will not be liable for any damages resulting from any call made using the emergency dialing feature. You understand that the voluntary 911 service will not work in certain circumstances, including, but not limited to: when you relocate your computer or magicJack device to a new physical location different than the one you registered with us; if you experience broadband connection failure; if you experience loss of electrical power at your location; if delays occur in the system making updates of your registered physical location. You assume the risk that you may not obtain emergency service when you use the 911 emergency dialing feature. You should always have an alternative means of accessing 911 or similar emergency services such as a landline telephone. It is your responsibility to inform others who use your magicJack device to make phone calls that they should be prepared to access the 911 emergency numbers through a traditional landline or mobile phone.
6. Proper Use
You agree that you are responsible for your own communications and for any consequences that arise from them. You agree that you will use the magicJack device in compliance with all applicable local, state, national, and international laws, rules and regulations. Among other things you will not agree to, and will not authorize or encourage any third party to: (a) prevent others from using their magicJack devices, (b) use the magicJack device for any fraudulent or inappropriate purpose, or (c) remove any copyright, trademark or other proprietary rights notices contained in or on the magicJack device, including those of any of our business associates, from whom we may have licensed certain components used in the magicJack device. Violation of any of these obligations may result in immediate termination of this Agreement, and may subject you to state and federal penalties and other legal consequences. magicJack reserves the right, but will have no obligation, to investigate your use of the magicJack device in order (a) to determine whether a violation of the Agreement has occurred or (b) to comply with any applicable law, regulation, legal process or governmental request. magicJack reserves the right to block calls to numbers that abuse its services such as, but not limited to, traffic stimulation numbers. If magicJack sees excessive use, including but not limited to, a customer whose usage is twenty (20) times more than the average magicJack's customer's 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 immediately, and you will not be entitled to get a refund of any licensing fee or any other fee you may have paid to us.
7. No Resale
Unless expressly authorized in writing by magicJack, you agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any purposes any portion of the magicJack device or the Software.
magicJack grants you a personal, non-transferable and non-exclusive right and license to use the magicJack device and Software on your computer; provided that you do not (and do not allow anyone else to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right of the magicJack device. The initial term of this license is for one year and may be renewed upon the one year anniversary of your magicJack 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 in any manner or form, or to use modified versions of the Software, including for the purpose of obtaining unauthorized access to the magicJack device. You agree not to access the magicJack and/or YMAX services by any means other than through the Software and the magicJack device.
Use of the magicJack device is free. Your purchase of the magicJack device and registration of the magicJack device gives you a license to use the magicJack and the Software for one year. To continue using the magicJack device and the Software after the end of the initial one-year term, you must renew your Software access license for additional one-year terms at magicJack's then applicable license fee. Failure to renew your registration after the end of the initial term or any renewal term will result in immediate termination of your license and access to any magicJack or YMAX feature. You will not be able to use the magicJack device and your right to use any phone number that was allocated to you will be canceled. For your convenience, magicJack offers an auto-renewal program. Your credit card will be automatically charged on the last business day of the current term for the prevailing renewal fee. You can elect to disable this auto renew feature at any time by going to http://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 and YMAX services.
Your registration data and certain other information about you are subject to this Terms of Service. You understand that by using the magicJack device you consent to magicJack's collection and use as set forth in these Terms of Service, including the transfer of this information to and from the United States and/or other countries for storage, processing and use by magicJack, its affiliates and business partners to provide you with information about communications-related service.
You acknowledge, consent and agree that magicJack and/or YMAX may access, preserve and disclose your account information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to your requests for customer service; or (d) protect the rights, property or personal safety of magicJack, its users and the public.
You understand that the technical processing and transmission of the magicJack device may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You also understand and agree that use of the magicJack device and Software will include advertisements. Advertisements will be served through the magicPage™ Software or the magicJack 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. magicJack has a policy of restricting advertisers that it believes are inappropriate, but it does not guarantee the accuracy or integrity of any advertisers and does not endorse any of the advertisements that may appear in connection with use of the magicJack device. You also understand and agree that use of the magicJack device and Software may include certain communications, such as service announcements, administrative messages and newsletters, and you will not be able to opt out of receiving them.
You agree to hold harmless and indemnify magicJack and YMAX, and its subsidiaries, affiliates, officers, agents, employees, partners and licensors, from and against any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of or relating in any way to, your use of the magicJack device and/or YMAX services (including but not limited to the cancellation, absence, failure or outage of the magicJack device, including specifically any claims arising out of the failure to complete emergency service calls). In such a case, magicJack will provide you with written notice of such claim, suit or action.
magicJack reserves the right to modify or discontinue the magicJack device 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 or Software and/or YMAX services.
You agree that magicJack and/or YMAX, in its sole discretion, may immediately terminate this Agreement and your license to use the magicJack device and Software and/or YMAX services, without any refund. magicJack and/or YMAX may terminate this Agreement for any reason, including, but not limited to, (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) unexpected technical or security issues or problems, (d) use of the magicJack device or Software 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 or Software by others, or (e) nonpayment of any fees, including license renewal fees, owed by you in connection with the magicJack Software, (f) changes in any rules or regulations that affect our ability to provide the magicJack device or the Software or YMAX services. Termination of your license includes cancellation of your ability to use the magicJack device and the Software, without refund and deletion of all related account information associated with or inside your account. Further, you agree that any termination of this Agreement will be made in magicJack's and/or YMAX's sole discretion and that neither magicJack nor YMAX 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 the number is transferred, as determined by the change of an account name, or as determined by the change of the authorized name on a registered credit card, or as determined by other means, the vanity number will, at our discretion, be revoked and the magicJack license terminated.
You may terminate the use of the magicJack device at any time. Remaining balances of international minutes will not be refunded.
All provisions which must survive in order to give effect to their meaning will survive any expiration or termination of this Agreement, including without limitation, all of your representations, warranties and indemnification obligations.
15. Intellectual Property Rights
You acknowledge and agree that the magicJack device and the Software contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by magicJack or advertisers, you agree not to reverse engineer, modify, rent, lease, loan, sell, distribute or create derivative works based on the magicJack device or the Software, in whole or in part.
16. No Warranties
YMAX services 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.
YMAX and magicJack MAKE NO WARRANTY REGARDING THE OPTIONAL FREE 911 EMERGENCY DIALING FEATURE PROVIDED. ALL CALLS MADE USING THE 911 EMERGENCY DIALING FEATURE ARE MADE AT THE CALLER'S RISK.
YMAX and magicJack MAKE NO WARRANTY AS TO THE COMPLETION, CLARITY, OR OVERALL QUALITY OF ANY PARTICULAR CALL MADE USING THE SERVICE.
YMAX and magicJack MAKE NO WARRANTY THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
YMAX and magicJack 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 THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
17. Limitation of Liability
magicJack can only be held liable for direct damages resulting from failure to perform its obligations under this Agreement. In this respect, direct damages means the amount you actually paid for the magicJack device and Software license during the year in which such damages occur. To the maximum extent permitted by applicable law, magicJack will not be liable for any indirect, special, incidental or consequential damages whatsoever (including but not limited to, damages for loss of profits or confidential or other information, for business interruption, for loss of privacy arising out of or in any way related to the use of or inability to use the magicJack device or Software, even if magicJack has been advised of the possibility of such damages.
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 magicJack has been advised of the possibility of such damages.
Some jurisdictions do not allow some of the exclusions or limitations as established above, so they may not apply to you. In that event the liability will be limited as far as legally possible under the applicable legislation.
You agree to comply with all export and import laws and restrictions and regulations of the United States and foreign countries, and not to export, re-export or import the magicJack device or Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. Neither the magicJack device the Software, nor the underlying information or technology may be downloaded or otherwise exported or re-exported (i) to Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other country subject to U.S. trade sanctions applicable to the magicJack device or Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and/or the U.S. Department of Commerce, Bureau of Export Administration Denied Persons List or Entity List. You acknowledge that the Software contains encryption technology, the export of which is restricted by the U.S. and certain foreign laws. By downloading the Software or using the magicJack device, you agree to this section and represent and warrant that you comply with these conditions.
19. Automatic Updates
The magicJack device and/or Software may communicate with magicJack's servers to check for available updates to the Software and/or magicPage™, including bug fixes, patches, missing plug-ins and new versions (collectively, "Updates"), however magicJack has no obligation to provide you with such Updates and we do so solely at our option. Updates do not include access to the Upgraded Software described in Section 5 above. To ensure that you have the most recent Updates for the Software you should periodically visit http://www.magicJack.com to check for Updates. magicJack may send and access magicJack 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. During the Update process, the Software may send to magicJack or its partners a request for the latest Software version. By installing the magicJack Software, you hereby agree to allow magicJack the option to automatically provide Updates from magicJack and/or its partners' servers.
20. Representations and Warranties
You represent and warrant that (a) all of the information provided by you to magicJack to use the magicJack device and Software is correct and current; (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder; and (c) you are at least 18-years-old.
21. Entire Agreement
This Agreement is the entire agreement between you and magicJack and YMAX and governs your use of the magicJack device and Software and items and/or services which may be provided by YMAX, it trumps any prior agreements between you and magicJack and/or YMAX. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other magicJack services, affiliate services, third-party content or third-party software.
22. Waiver and Severability of Terms
Even if magicJack 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.
23. Statute of Limitations
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the magicJack device or Software or services of this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
24. Choice of Law; Binding Arbitration; Forum
This Agreement will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its conflict of laws provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the magicJack device or Software 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.
25. 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.
26. 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.