THIS MAGICJACK® FOR BUSINESS E911 DISCLOSURE NOTICE (this “E911 Notice”) is agreed, acknowledged and accepted by Customer as a user of magicJack’s business services and any associated software and hardware (the “Services”), pursuant to the magicJack® for Business Terms of Service, located at: www.magicjackforbusiness.com/terms.html (the “Agreement”) between magicJack SMB, Inc. (“magicJack”) and Customer. Any capitalized terms not otherwise defined in this E911 Notice shall have the meanings ascribed to such terms in the Agreement. In the event of any conflict between this E911 Notice and the Agreement, this E911 Notice shall control.
Customer acknowledges and understands that it is Customer’s responsibility to determine the technology or combination of technologies best suited to meet Customer’s emergency calling needs and to make necessary provisions for access to emergency calling services (such as maintaining a conventional landline phone or wireless phone as a backup means of completing emergency calls).
1. Emergency Services – 911 Calling
a. Non-Availability of Traditional 911 or E911 Calling Service. magicJack® for Business E911 Service (the “E911 Service”) is a mandatory component of the Services and is only available in certain areas. Most Customers have access to either Basic 911 Service or Enhanced 911 Service, as defined in Subsection 1.b.1. below. The E911 Service enables Customers to communicate with emergency services by dialing 911. However, the E911 Service is different in important ways from traditional landline 911 and cellular/wireless 911, depending upon where Customer is located and the device used with the Services. Customer agrees to notify any user or potential user of the Services who may place calls using Customer’s Services of the 911 limitations described herein. Customer agrees to place a label on and/or near each telephone or other Customer Equipment on which the Services may be utilized regarding the limitations or unavailability of 911 emergency dialing. magicJack will provide Customer with such labels for magicJack Equipment.
b. Description of Emergency Dialing Capabilities.
1. How it Works. When a Customer dials 911 from a device connected to or used with the Services (a “magicJack device”), the magicJack phone number and the registered address Customer has provided to magicJack is sent to the local emergency center serving the location of your registered address to enable emergency operators to send help and to call the Customer back, if necessary (“Enhanced 911 Service”). In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not be able to see Your magicJack telephone number or your registered address. Customers in locations in which the emergency center is not equipped to receive the Customer’s telephone number and/or address have what is called “Basic 911 Service”. Customer should always be prepared to provide the emergency operator with Customer’s telephone number and location. Until the Customer gives the requisite call back and location information to the emergency operator, the emergency operator may not be able to dispatch help or return the Customer’s call. This is especially the case if the call is not completed or forwarded, is dropped or disconnected, or if the Customer is unable to speak. As local emergency centers become capable of receiving Customer’s address and call back information, magicJack will automatically upgrade customers with Basic 911 service to Enhanced 911 Service. magicJack will not provide notice of the upgrade. magicJack does not control whether or not the emergency operator receives Customer’s telephone number and address.
2. No Access to Enhanced or Basic 911 Service. Certain Customers do not have access to either Enhanced 911 Service or Basic 911 Service. If Customer does not have access to Enhanced 911 Service or Basic 911 Service, the Customer’s emergency call will be sent to a national emergency call center. In such case, an agent at the emergency call center will ask the Customer for his/her name, telephone number and location and will then contact the local emergency center for such location in order to send help. Examples of situations where 911 calls will be sent to the national emergency call center include when there is a problem validating a Customer’s address, the Customer is identified with an international location (see section 2(b)), or the Customer is located in an area that is not covered by the 911 network. Until Customer gives the agent Customer’s telephone number and location, he/she may not be able to call Customer back or dispatch help to Customer’s location if the call is dropped or disconnected.
c. E911 Service Fees. Customers are required to subscribe to the E911 Service and will be subject to monthly, government-imposed fees (the “E911 Service Fees”), which are in addition to any applicable state 911 tax based on Customer’s service address and in addition to the applicable Service Fees for the associated line(s). If the E911 Service Fees are not paid, the emergency communications district in Customer’s jurisdiction may seek to collect such amounts from Customer directly. magicJack does not profit from Customer’s E911 Service and the E911 Service Fees collected are turned over to the appropriate government authority pursuant to their requirements. magicJack reserves the right to adjust the E911 Service Fees associated with the provision of the E911 Service to reflect increases or decreases in the costs it incurs in providing the E911 Service.
2. Registered Location.
a. Registered Location Required. Upon creation of the Customer account, magicJack initially assigns all extensions and magicJack devices to the physical street address on file for the Customer. Prior to activation of the Services, an Administrator shall: (i) register with magicJack all additional 911 locations where the Services are to be used, as necessary; and (ii) assign each magicJack device to one of the registered 911 locations. An Administrator may register multiple 911 locations per account and assign all active extensions and magicJack devices to such 911 locations. Individual end users may assign and re-assign their current location(s) on an as-needed basis. Customer agrees to ensure that the physical location(s) provided to magicJack are correct, and to immediately update such location(s) whenever the physical location(s) of the magicJack devices change. If a magicJack device will be used in a different or new location, an Administrator must create and/or register the location for the magicJack device. If Customer does not register the new location, any 911 call made from the magicJack device may be sent to an emergency center near the prior, registered location. In most cases, the registration process occurs in real-time. In some cases, the registration will be referred to a 911 provider for validation, which could take days. Customer (i) acknowledges and understands that any location information passed to emergency personnel by magicJack will be based upon the physical location information provided by the Customer, and (ii) agrees to promptly assist magicJack in validating a 911 location address that has been rejected by the 911 provider.
b.Use of Service Outside United States or Canada. Customer acknowledges that if a user of the Services calls 911 from outside the United States or Canada, the user may be instructed to hang up and call their local service provider. Customer shall notify all users (i.e., business colleagues, employees, guests and other persons who may be present at the physical location where Customer uses the Services) that 911 may not be available outside the United States and Canada and that 911 service may be limited in comparison to traditional 911 service. For clarity, 911 service is available only in the 50 United States, the District of Columbia, and Canada, and is not provided in any US territory or in other international locations.
c. Failure to Designate and Identify the Correct Physical Address. Customer’s failure to provide and keep current Customer’s correct physical location(s) may result in any 911 call or other emergency communication made by Customer or from Customer’s actual location (if different from the location previously supplied to magicJack by Customer) being routed to the incorrect local emergency service provider. Most post office box addresses are not eligible as a validated 911 location. Customer’s physical location(s) may NOT be a mail drop or similar address. Customer acknowledges that magicJack’s only mechanism for routing 911 calls to the correct emergency call taker is the physical location currently registered for Customer’s account. Customer acknowledges and understands that any enhanced location information passed to an emergency operator by magicJack will be based upon the physical location provided to magicJack by Customer.
3. Service Outage
a. Power Failure or Disruption. Emergency dialing will not function in the event of a broadband, power or ISP Service failure or disruption. If there is an interruption in the power supply, a power surge or a power failure, the Services and emergency dialing will not function until power is restored. A power failure, power surge or power disruption may require Customer to reset or reconfigure equipment prior to using the Services or being able to make emergency 911 calls.
b. Service Suspension or Termination by magicJack. A Services outage or suspension (including, without limitation, suspension of Services due to billing issues or delinquent or unpaid invoices) or termination of Services by magicJack will prevent ALL calls from being made through the Services, including the ability to make emergency 911 calls.
c. Other Service Outages. If there is a Services outage for ANY reason, such outage will prevent ALL calls from being made through the Services, including the ability to make emergency 911 calls. Such outage may occur for a variety of reasons, including, without limitation, those reasons described elsewhere in this E911 Notice or the Agreement.
4. Automated Number Identification. Due to limitations at public-safety answering points (“PSAP(s)”), it may not be possible for the PSAP and the local emergency personnel to identify Customer’s telephone number (or the number assigned by magicJack) when Customer dials 911 via the Services. PSAP and emergency personnel may be unable to identify Customer’s telephone number in order to call Customer back in the event that an emergency call is unable to be completed, is dropped or disconnected, or if a caller is unable to speak to provide the telephone number from which the caller is calling, and/or if the Services is not operational for any reason including, without limitation, the reasons and situations listed elsewhere in this E911 Notice or the Agreement.
5. Automated Location Identification. Due to limitations at PSAPs, it may not be possible to transmit identification of the Customer physical location address to the PSAP and local emergency personnel for Customer’s area when Customer or any caller at Customer’s premises dials 911. A caller must state the nature of the emergency promptly and clearly, including the caller’s specific physical location, as PSAP and emergency personnel may NOT have this information. PSAP and emergency personnel may not be able to find a caller’s location if the call is unable to be completed, is dropped, or disconnected, or if the caller is unable to speak to provide the location from which the caller is calling and/or if the Services are not operational for any reason including, without limitation, those reasons and situations listed elsewhere in this E911 Notice or the Agreement.
6. Indemnification. Customer shall protect, defend, indemnify, and hold harmless magicJack and its officers, directors, employees, affiliates, contractors and agents and any other service provider that furnishes services to Customer in connection with the Services, from and against any and all claims, lawsuits, losses, damages, liability, fines, penalties, costs and expenses, including, without limitation, attorneys’ fees and costs, arising from or related to any absence, failure or outage of the Services, including, without limitation, emergency 911 calling and/or inability of Customer or any Customer employee, third person or party, or user of the Services, to be able to call 911 or to access emergency service personnel.
7.Disclaimers; Limitation of Liability. MAGICJACK SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY ASSOCIATED WITH ANY FAILURE OF THE SERVICES, OR LACK OF AVAILABILITY TO REACH 911 SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT MAGICJACK’S WILL HAVE NO LIABILITY WHATSOEVER FOR ANY SERVICES OUTAGE OR INABILITY TO COMPLETE EMERGENCY 911 CALLS FROM ANY MAGICJACK DEVICE, CUSTOMER LINE OR CUSTOMER PREMISES OR TO ACCESS EMERGENCY SERVICE PERSONNEL, OR IN THE EVENT THAT CUSTOMER OR ANY OTHER CALLER FROM CUSTOMER'S EQUIPMENT IS UNABLE TO PLACE, OR COMPLETE, A CALL TO 911 OR E911 SERVICES, OR IN THE EVENT THAT EMERGENCY RESPONDERS DO NOT RESPOND, OR DO NOT RESPOND TO THE LOCATION AT WHICH THE EQUIPMENT, CUSTOMER, OR CALLER IS PHYSICALLY PRESENT OR REQUIRE SUCH SERVICES. IN NO EVENT SHALL MAGICJACK BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES RELATED TO CUSTOMER’S (OR ANY CUSTOMER EMPLOYEE, AGENT, OR CONTRACTOR, OR THIRD PERSON OR THIRD PARTY OR USER OF THY SERVICES) USE OF OR INABILITY TO USE E911 SERVICE. UNDER NO CIRCUMSTANCES WHATSOEVER WILL MAGICJACK HAVE ANY LIABILITY ASSOCIATED WITH 911 OR E911 SERVICES, INCLUDING, AND WITHOUT LIMITATION, IN THE EVENT OF: A) LOSS OF ELECTRICAL POWER; B) LOSS OF INTERNET CONNECTIVITY; C) DEFECTIVE OR MISCONFIGURED EQUIPMENT; D) NETWORK CONGESTION; E) DELAYS ASSOCIATED WITH UPDATING REGISTERED SERVICE LOCATION; F) RESTRICTIONS CREATED BY NONVOICE EQUIPMENT; G) RELOCATED EQUIPMENT, INCLUDING OUTSIDE OF THE UNITED STATES OR CANADA; H) THE SIMULTANEOUS USE OF ONE LINE WITH MULTIPLE PIECES OF EQUIPMENT; I) FAILURE OF EMERGENCY RESPONSE CENTERS TO ANSWER A 911 CALL; J) FAILURES OF ANY THIRD PARTIES THAT ARE RESPONSIBLE FOR ROUTING 911 CALLS; K) THE USE OF NONNATIVE TELEPHONE NUMBERS; or L) ANY FORCE MAJEURE EVENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATION OF MAGICJACK’S LIABILITY IS A MATERIAL TERM TO THE AGREEMENT, AND THAT IT WOULD NOT OTHERWISE ENTER INTO THE AGREEMENT WITHOUT THIS LIMITATION, AND THAT CUSTOMER AGREES THAT THESE LIMITATIONS ARE REASONABLE.