Subscriber Agreement for magicJack Spark provided by magicJack VocalTec Ltd.


The magicJack Spark App (the "App") and the Services accessed through your use of the App are brought to you by magicJack VocalTec LTD, a Limited Company organized in the State of Israel ("magicJack"). Before you begin using the App or the Services, you must read and agree to this Subscriber Agreement (referred to collectively with any future amendments hereto as the " Agreement"), subject to Section 17 of this Agreement.  Before you activate the App or any Service, you must read and agree to this Agreement by checking the appropriate box when prompted.  If you do not agree to be bound by this Agreement, you will not be able to activate the App or Services. 

By accepting this Agreement, you agree that you have read this Agreement carefully and completely, understand it, and agree to be bound by it, including, without limitation, Section 4 (Emergency Calls), Section 7(d) (Automatic Renewal), and Section 17 (Notice to New Jersey Residents). 

Definitions:

As used in this Agreement, the following terms have the following meanings:

"App" means the application sold and marketed as magicJack Spark App offered for download to smart phones and tablets by magicJack to provide the Services over the internet.

"Company", "Companies" or "we" or "us" or "our" means magicJack. 

"Documentation" means our technical materials provided to you, if any, in hard copy or electronic form describing the use and operation of the Services.

"Fees" means all amounts due for the Services, including subscription renewal fees.

"International Communication Services" means the international Internet communications features enabled by the App, subject to the limitations set forth in this Agreement. 

 "Service(s)" means the services furnished through the use of the App.

"Updates" as defined in Section 19 of this Agreement.

"Domestic Communication Services" means the U.S. and Canadian Internet communications features enabled by the App, subject to the limitations set forth in this Agreement.

"you", "your" or similar phrases refers to the person purchasing, using and/or downloading the App and Services and agreeing to the terms of this Agreement.

1.     Description of how the Services work.   The App enables your use of the Services as described in this Agreement. To enable your use of the Services you must download the App to a compatible smart phone or tablet. You may download the App from the iTunes App Store and the Google Play store.  Compatibility of your smart phone or tablet will be confirmed upon download.  Your use of the Services is dependent on the compatibility of your smart phone or tablet and your periodic download of Updates and what type of service plan you purchase from the Company.  The Services will not work on an incompatible smart phone or tablet or if Updates are not downloaded on a timely basis.   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 or accessing third party products and services required to use the Services (such as a compatible smart phone or tablet and high-speed internet access) and for paying any fees for such third-party products and services.

2.     Internet Communications Features. You may elect to choose a unique phone number to make and receive calls through your use of the App utilizing the Services.  The phone number chosen by you will be assigned to you provided the Company determines that the number is available and legally permissible. If you are eligible for a phone number, it will be assigned to you as soon as reasonably possible after the Company has received your request. The Company does not guarantee that a requested phone number can be assigned to you. The assignment 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 any Fees paid by you. The Company may, without any liability, refuse, change or terminate any phone number at any time. If the Company changes the phone number that has been assigned to you, the Company 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 a refund of any Fees paid by you. We will not be liable for any damages resulting from the change of the phone number.

a.     Domestic Communication Services.  With Domestic Communication Services, you can make unlimited calls to and receive calls from other App users located anywhere in the world, and traditional telephone networks or wireless networks in the United States (other than Alaska), Canada (other than Yukon and the Northwest Territories) and calling card, platform, conference or chat lines. International calls and calls to Alaska, and the Yukon and Northwest Territories of Canada will require purchase of International Communication Services. Some restrictions in cost prohibitive areas may apply and 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 preserve the integrity of the network, which would prevent abandoned calls.  Excessive use restrictions also apply as described in Section 13.

b.     International Communication Services.  With International Communication Service, which magicJack may offer in the future, you will be able to make calls to and receive calls from traditional telephone networks or wireless networks in foreign countries, Alaska, and the Yukon and Northwest Territories of Canada at a per minute rate specified in the schedule communicated through the App and web portal located http://www.magicjackspark.com/.

3.     Conference Lines and Other Fee per Call Services.  Unlimited outgoing calls available through the Services do not include any calling card, platform conference or chat lines.  In the future, we may require purchase of International Communication Services for calls to conference lines, platforms and certain other high cost calls.

4.     Emergency calls.  The App does not provide any emergency calling or texting capability.  The App does NOT support any emergency calls or texts to 911. The App is not a traditional telephone service or a replacement for your primary telephone service. There are important differences between traditional telephone services and the App Service. You need to make additional arrangements in order 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 App that you have downloaded, that it is not possible to support or carry 911 calls or texts using the App, and that they may access emergency services via the additional arrangements that You have made available.

5.     Proper Use; Restrictions.  Subject to Section 17 of this Agreement, you agree that you are responsible for your own communications and for any consequences that arise from them and that the Company will have the rights set forth in this Section 5.

a.     Proper Use. You agree that you will use the Services in compliance with all applicable local, state, provincial, national, and international laws, rules and regulations and you may have to pay certain taxes or fees or surcharges including, without limitation, regulatory fees. 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 App or Services, including those of any of our business associates, from whom we may have licensed certain components used in the Services, (d) collect or harvest any personally identifiable information, including phone number, from the Service, or to 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 Services in order (x) to determine whether a violation of the Agreement has occurred or (y) 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

b.     Restrictions.  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 grants 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 subscribers. 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. You agree that you will not (and will 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 use the App or the Services except as specifically provided in this Agreement. You agree not to modify the App in any manner or form, or to use modified versions of the App, including for the purpose of obtaining unauthorized access to any other App subscriber or the Services.

6.     No Resale.  Unless expressly authorized in writing by the Company, you agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any purposes any portion of the App or the Services.

7.     Subscription. 

a.     Free Trial Offer.  We may offer You the opportunity to download the App and use the Services, free of charge, for a trial period of thirty (30) days ("Free Trial").  If offered, Your Free Trial will begin when You download the App and Your credit card will not be charged until your Free Trial ends.  If you do not cancel Service as provided in Section 7(d) below before Your Free Trial ends, You will be charged the applicable Fees for Services until your Service term expires or is terminated in accordance with the terms of this Agreement.  

b.     Activation Page. When you purchase Services on magicJack's website by accessing the activation page, you may elect to sign up for a Service plan with certain duration.  The terms and conditions on the activation page, including, without limitation, the duration of the Services, auto-renewal (if applicable), and Fees, are incorporated herein.   You represent and warrant that all of the information provided by you during activation is correct and current.  

c.     Term. The App will have the Service term communicated to you upon purchase.

d.     AUTOMATIC RENEWAL. WHEN YOU ACTIVATE SERVICES, YOU CAN ELECT TO AUTOMATICALLY RENEW THE SERVICES, OR FOR CERTAIN SERVICES, YOU WILL BE NOTIFIED THAT THE SERVICES WILL BE AUTOMATICALLY RENEWED.  AT THE END OF YOUR INITIAL TERM OR ANY RENEWAL TERM, YOUR PLAN WILL AUTOMATICALLY RENEW FOR AN ADDITIONAL TERM OF THE SAME LENGTH UNLESS YOU CHOOSE TO TURN OFF AUTOMATIC RENEWAL OR CANCEL YOUR SUBSCRIPTION AT LEAST ONE CALENDAR DAY BEFORE YOUR SUBSCRIPTION IS RENEWED (YOUR "RENEWAL DATE").  IF YOU DO NOT TURN OFF AUTOMATIC RENEWAL OR CANCEL YOUR SUBSCRIPTION BY YOUR RENEWAL DATE, YOUR ACCOUNT WILL AUTOMATICALLY BE CHARGED THE APPLICABLE FEES FOR AN ADDITIONAL TERM AT THE RATES IN EFFECT AT THE TIME OF RENEWAL. 

YOU MUST AFFIRMATIVELY TURN OFF AUTOMATIC RENEWAL OR CANCEL YOUR SUBSCRIPTION ON OR BEFORE YOUR RENEWAL DATE TO AVOID BEING CHARGED. YOU CAN ELECT TO DISABLE THE AUTO RENEWAL FEATURE AT ANY TIME BY CALLING 877-618-0351.  YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY CALLING 877-618-0351. IN THE FUTURE, YOU WILL ALSO HAVE THE ABILITY TO DISABLE THE AUTO RENEWAL FEATURE OR CANCEL YOUR SUBSCRIPTION BY VISITING http://account.magicjackspark.com.

IF YOU HAVE PROVIDED MAGICJACK WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD SAVED IN YOUR ACCOUNT, AND YOU HAVE NOT TURNED OFF AUTOMATIC RENEWAL OR CANCELLED YOUR SUBSCRIPTION BY YOUR RENEWAL DATE, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY PROCESSED SHORTLY AFTER YOUR RENEWAL DATE, AND THE APPLICABLE FEES WILL BE CHARGED TO THE CARD OR APPLICABLE PAYMENT METHOD YOU PROVIDED TO MAGICJACK AT THE TIME OF PURCHASE. 

If you have elected to turn-off automatic renewal for those Services with terms longer than month-to-month, your Services may be renewed manually by calling 877-618-0351.

8.     Payment.  Use of the App and Services may be free for a period of time as set forth in Section 7(a) above. Your payment of the applicable Fees gives you the right to use the Services for the term of the plan purchased. To continue using Services after the end of the initial Service term, your Service subscription must be automatically renewed or renewed by You for additional terms at the then applicable Fees. You agree to be responsible for any applicable taxes, regulatory fees, or administrative charges, now in force or enacted in the future in connection with the subscription and your use of the Services. If you use a credit card issued by a non-US financial institution to pay for the App and Services, your financial institution may convert the charge and it may impose currency exchange fees, for which you are responsible. Services that are charged by the minute (such as International Communication Services) may expire six months after the date of purchase.

9.     Privacy Policy.  You agree and consent that your registration data and certain other information about you, including personally-identifiable information, and our collection, use and sharing of such data and information, will be treated in accordance with our Privacy Policy ("Privacy Policy") which is incorporated by reference into this Agreement and may be found at: http://www.magicjack.com/privacy.html and as may be modified thereafter. We strongly recommend that, as you read this Agreement, you also access and read the linked Privacy Policy since it is incorporated into and hereby made part of this Agreement.

10.  Indemnification.  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 App or Services (including but not limited to the cancellation, absence, failure or outage of the App or Services, including specifically any claims arising out of the failure to complete emergency service calls).

11.  Modification.  We reserve the right to modify the App or the Services, temporarily or permanently, with or without notice or liability to you.

12.  Termination.  Subject to Section 17 of this Agreement, You agree that You or We may terminate this Agreement as provided in this Section 12 and that You and We will have the rights set forth in this Section 12. If your Service subscription expires or is terminated for any reason, we may immediately revoke the applicable phone number, at our sole discretion, and your Service plan may be deemed obsolete or non-renewable upon the expiration of your subscription. We may terminate your use of the App and/or Service immediately if we suspect a violation of this Agreement, or if we think it necessary in order to protect other customers or our respective, parents, affiliates, directors, officers, agents, and employees from harm. We reserve the right to reclaim any telephone number that is not used to 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 agree that we may immediately suspend and/or terminate this Agreement and your subscription to use the App or Services, 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 App or Services violates any laws, regulations, or rules, or otherwise disrupts use of the App or Services by others, (e) as a result of nonpayment of any Fees owed by you in connection with your use of the App or Services, (f) as a result of changes in any laws, regulations, or rules that affect our ability to provide the Services or any relevant portion thereof, or (g) your breach or violation of any of your obligations undemso-bookmark:OLE_LINK22r this Agreement or incorporated agreements or guidelines. Termination of your subscription includes cancellation of your ability to use the App and Services, without refund and deletion of all related account information associated with your account. Further, you agree that any termination of this Agreement under this Section 12 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 12. You may terminate your use of the Services at any time. Remaining balances will not be refunded. Messaging records, photos, videos, text messages, faxes and voicemails stored on the Company's servers, if any, will be deleted within a reasonable time following expiration or termination of a App or Service account. All provisions of this Agreement 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.

13.  Excessive Use. If we become aware of unreasonably excessive use of the Services, including but not limited to, usage that is extraordinarily greater than the average customer usage, or calling more than 50 different telephone numbers per day, or forwarding calls from your App 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 App and Service immediately, and you will not be entitled to get a refund of Fees you may have paid to us.

14.   Intellectual Property Rights. You acknowledge and agree that the App and Services 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 App and Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. We expressly reserve all rights in the App, the Services, the Documentation, and all other materials provided by us hereunder not specifically granted you. You agree that all right, title and interest in the App, the Services, the 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 App, the Services, the Documentation and all other materials provided by us and not sold to you hereunder are provided to you on a subscription basis only for the term of your subscription.

15.  Warranties and disclaimers. To the maximum extent permitted by applicable law, and subject to Section 17 of this Agreement, the App AND SERVICES are provided "as is", without any warranties of any kind, whether expressed, implied, OR STATUTORY, including, but not limited to, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  MAGICJACK ALSO MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR THE APP OR SERVICES WILL BE ERROR-FREE.  MAGICJACK IS NOT responsible for procuring OR maintaining any third-party software, hardware or SERVICES, such as Internet connection, that are necessary for the APP and services to operate. 

Subject to Section 17 of this Agreement, MAGICJACK makeS no warranty regarding ACCESS TO 911 CALLS that may be provided through the app OR Services. 

16.  Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MAGICJACK BE LIABLE TO YOU 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 APP OR SERVICES; (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO MAGICJACK IN CONNECTION WITH THE APP AND SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. 

CERTAIN STATE LAWS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OF LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

17.  NOTICE TO NEW JERSEY RESIDENTS. If you are a New Jersey resident, your rights are protected under the Truth-in-Consumer Contract, Warranty and Notice Act and New Jersey law generally.  The following provisions in this Agreement do not apply to you and are not intended to vary, diminish or alter your rights under New Jersey law: specifically, nothing in this Agreement limits, varies, diminishes, affects, or otherwise voids or alters your rights under New Jersey law as they relate to limitations of liability or exculpation (including, but not limited to, limitations on indirect, incidental, special, exemplary, consequential or similar damages), dispute resolution, indemnification, venue or jurisdiction, statutes of limitation or repose periods for bringing claims, plain language requirements, representations and warranties of any type or nature (including, but not limited to conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quite enjoyment, and non-infringement), contract remedies, personal injury, tort and negligence claims, conditions of sale, fee-shifting provisions, waiver of attorney fees and/or costs, and copyright.  Your rights regarding these specific provisions will be governed by New Jersey law.  In the event of any conflict between this Agreement and New Jersey law, New Jersey law will govern.

18.  Export/Import. Notwithstanding any other provision of this Agreement to the contrary, you will comply with all applicable U.S. and non-U.S. export control laws, including the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR"), and economic sanctions programs including those that are or may be maintained by the U.S. Government such as comprehensive U.S. economic sanctions currently imposed against Cuba, Iran, North Korea, Sudan, Syria, and Crimea (region of Ukraine) (collectively, "Sanctioned Countries"), as well as individuals and entities identified on, or owned or controlled by or acting on behalf of entities identified on, applicable government restricted party lists such as the List of Specially Designated Nationals and Blocked Persons, Foreign Sanctions Evaders List, Denied Persons List, Unverified List, and Entity List (collectively, "Restricted Parties").  (Applicable export controls and economic sanctions are collectively referred to as "Trade Control Laws.") 

You represent that (i) you are not any member of the Restricted Parties or acting on behalf of Restricted Parties; (ii) you are not located or ordinarily resident in, organized under the laws of, or acting on behalf of a Sanctioned Country; or (iii) you will not access or otherwise use the App and Services from a Sanctioned Country.  You further represent that you will not use or transfer the App and Services: (i) in violation of any Trade Control Laws; (ii) for activities directly or indirectly related to any end-uses that are restricted by the U.S. Government (including but not limited to nuclear, missiles, chemical or biological weapons end-uses); or (iii) in the export, re-export, storage, hosting or other transfer of your data, information, services or other activities subject to the ITAR.  You will not use the App or Services to export, re-export, store, host or otherwise transfer your data subject to the EAR and controlled at a level other than EAR99/AT (or equivalent level of control under non-U.S. Trade Control Laws unless: (i) you provide prior written notice to magicJack specifying the nature of the controls and any relevant export control classification numbers; and (ii) magicJack consents in writing to the use of the App and Services for the export, re-export, storage, hosting or transfer of your controlled data.  magicJack may decline to receive your data subject to export controls at a level higher than EAR99/AT.  You are solely responsible for compliance with Trade Control Laws in the use of the App and Services and in the access to and use and processing of your data.  

19.  Automatic Updates. The App and/or Services may communicate with our servers to check for available updates to the App or Services, 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 App and Services you should accept and download Updates provided through the iTunes App or Google Play stores. You may also have the option to automatically receive Updates from the iTunes App or Google Play stores. We will have no liability for your inability to use certain features of the App or Services or reduced App or Service performance associated with your failure to install available Updates.

20.  Representations and Warranties. You represent and warrant that (a) all of the information provided by you to us to use the App and Services 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, as it may be updated or amended from time-to-time as effectuated by posting such updates or amendments in amended versions of this Agreement posted at http://www.magicjackspark.com/saps, incorporates by reference all policies and guidelines posted on the   http://www.magicjackspark.com/ website and as may be modified thereafter and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.

22.  Assignment.  Subject to Section 17 of this Agreement, you agree that you may not assign this Agreement to any third party, but magicJack may assign this Agreement without your consent to any person including, without limitation, any person that controls, is controlled by, or is under common control with magicJack; or pursuant to a transfer of all or substantially all of magicJack's business or assets, whether by merger, sale of assets, sale of stock, or otherwise.  Any assignment in violation of this Section shall be void.

23.  Amendment; Waiver and Severability of Terms.  If magicJack materially amends the terms of this Agreement, you will be given an opportunity to accept or reject the amended terms. If You do not agree to such amendment, You may cease using the Services and uninstall the App. You agree that all notices provided to you will be in English.  Any waiver of any provision of the Agreement will be effective only if in writing and signed by you and magicJack.   magicJack's failure to enforce its rights and remedies available to it with respect to your breach of this Agreement will not constitute a waiver of such breach or of any prior, concurrent or subsequent breach of the same or any other provision of the Agreement.   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 will remain in full force and effect.  This Section is subject to the provisions of Section 17 of this Agreement.

24.  Disputes. You and magicJack agree that any dispute that has arisen or may arise relating in any way to your use of or access to any App or Services, any breach, enforcement, or termination of this Agreement, or otherwise relating to magicJack in any way (collectively, "Covered Matters") will be resolved in accordance with the provisions set forth in this Section.  This Section shall survive termination of this Agreement and applies subject to the provisions of Section 17 of this Agreement.

a.              Informal Resolution.  If you have any dispute with magicJack, you agree that before taking any formal action, you will contact magicJack at privacyrights@magicjack.com, provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account) and allow sixty (60) days to pass, during which magicJack will attempt to reach an amicable resolution with you.

b.              Applicable Law.  United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of Florida, without regard to conflict of laws principles, will govern all Covered Matters.

c.              Arbitration.  This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act applies in all cases and governs the interpretation and enforcement of the arbitration rules and arbitration proceedings.   Any Covered Matter must be asserted individually in binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Terms and the AAA Supplementary Procedures for Consumer-Related Disputes (including, without limitation, utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel).  The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals.  The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including, without limitation, any claim that all or any part of this Agreement is void or voidable or a particular claim is subject to arbitration.  Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

d.              Award.  For matters where the relief sought is over $5,000, the arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award.   The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law.  The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section herein (Section 16) as to the types and the amounts of damages for which a party may be held liable.  The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.  The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.

e.              Exceptions. There are only two exceptions to this agreement to arbitrate:

                                      i.              First, if either party reasonably believes that the other party has in any manner violated or threatened to infringe the intellectual property rights of the other party, the party whose rights have been violated may seek injunctive or other appropriate interim relief in any court of competent jurisdiction.

                                    ii.              Second, any claim of $500 or less may, at the option of the claiming party, be resolved in a small claims court in Palm Beach, Florida, if the claim and the parties are within the jurisdiction of the small claims court, and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.

f.               Costs of Arbitration.  Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this agreement to arbitrate.  If the value of the relief sought is $5,000 or less, at your request, magicJack will reimburse you for all filing, administration, and arbitrator fees associated with the arbitration following the earlier of the arbitrator's decision or settlement.  In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, magicJack is relieved of its obligation to reimburse you for any fees associated with the arbitration.

g.              Future Amendments to the Agreement to Arbitrate.  Notwithstanding any provision in the Agreement to the contrary, you and magicJack agree that if magicJack makes any amendment to this agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against magicJack prior to the effective date of the amendment.  The amendment shall apply to all other disputes or claims governed by the agreement to arbitrate that have arisen or may arise between you and magicJack.  If you do not agree to these amended terms, you may close your account within thirty (30) days of the posting or notification and you will not be bound by the amended terms.

h.              Judicial Forum for Legal Disputes.  Unless you and magicJack agree otherwise, in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the agreement to arbitrate, as a result of a decision by the arbitrator or a court order, or because you have chosen to file an eligible lawsuit in a small claims court, you agree that any claim or dispute that has arisen or may arise between you and magicJack must be resolved exclusively by a state, federal, or small claims court located in Palm Beach, Florida.  You and magicJack agree to submit to the exclusive personal jurisdiction of the courts located within Palm Beach, Florida for the purpose of litigating all such claims or disputes.

i.               Opt-Out.  IF YOU ARE A NEW USER OF THE APP OR SERVICES, YOU CAN CHOOSE TO REJECT THE AGREEMENT TO ARBITRATE PROVISION ("OPT-OUT") BY EMAILING MAGICJACK AN OPT-OUT NOTICE PURSUANT TO SECTION 24(j) BELOW.  THE OPT-OUT NOTICE MUST BE RECEIVED NO LATER THAN THIRTY (30) DAYS AFTER THE DATE YOU ACCEPT THIS AGREEMENT FOR THE FIRST TIME.  IF YOU ARE NOT A NEW USER, YOU HAVE UNTIL THIRTY (30) DAYS AFTER THE POSTING OF THE NEW TERMS TO SUBMIT AN ARBITRATION OPT-OUT NOTICE.

j.               Procedure.  In order to opt-out, you must email your name, address (including street address, city, state, and zip code), and email address(es) associated with your Account(s) to which the opt-out applies and an unaltered digital image of a valid driver's license which matches the name on your account to: privacyrights@magicjack.com. You can also mail the information in the prior sentence via US Mail to: 560 Village Blvd., Suite 120 , West Palm Beach, FL 33409.  This procedure is the only way you can opt out of the agreement to arbitrate.  If you opt out of the agreement to arbitrate, all other parts of this Agreement and this Section (Disputes) will continue to apply to you.  Opting out of this agreement to arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with magicJack.

k.              WAIVER.  BY AGREEING TO THIS AGREEMENT, YOU HEREBY IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT YOU MAY HAVE TO A COURT TRIAL (OTHER THAN A SMALL CLAIMS COURT AS PROVIDED ABOVE) OR TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST MAGICJACK AND/OR RELATED THIRD PARTIES.

l.               STATUTE OF LIMITATIONS.  SUBJECT TO SECTION 17 OF THIS AGREEMENT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE APP OR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR IT WILL BE FOREVER BARRED.

m.            Survival.  Sections 5, 8, 15, 16, 21, 22, 23, 24 and 25, and any other provisions that are intended to survive, shall survive the termination of this Agreement.

 

25.  iOS/App Specific Provisions.  The following provisions apply to App Services downloaded from the iTunes App Store:

a.     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 App and the Service.

b.     The license granted to you hereunder for use of the App and Service is limited to a personal, non-transferable, non-assignable, revocable and non-exclusive right to use the App and the Service on any compatible 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.

c.     The Companies, and not Apple, are solely responsible for providing maintenance and support services with respect to the App and the Service.  You acknowledge and agree that Apple has no obligation whatsoever to provide any such maintenance and/or support.

d.     The Companies, and not Apple, are solely responsible for the breach of any warranties specifically set forth in this Agreement.  If the App or Service fails to conform with any such warranties, you may notify Apple of such non-conformity and Apple will refund the purchase price paid by you for the App or Service 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.

e.     You acknowledge that Apple is not responsible for any claims you may have relating to the App or Service, including without limitation, (i) product liability claims, (ii) any claim that the App or Service fails to conform to any applicable legal or regulatory requirement, or (iii) any claims arising under consumer protection or similar legislation.

f.      You acknowledge and agree that, in the event of any third party claim that the App or Service, 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.

g.     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.