Last UPDATED: January 14, 2014
You acknowledge and agree that this EULA is between you and Vestigo, not with any third party (including, but not limited to, Apple®, Google®, or any mobile carrier), and that Vestigo is solely responsible for the App.
The App is a mobile dispatch and field service management tool that works in conjunction with the Total Dispatch service for businesses and organizations. You are assigned a log-in and password by the business or organization ("Dispatcher") that dispatches jobs to you through the App. When using the App, you are bound by all agreements between you and your Dispatcher.
You acknowledge and agree that your Dispatcher, and not Vestigo, is responsible for the jobs sent to you through the App, including the addresses of customers, job descriptions, job rates, and other related information.
You must be a resident of the United States of America and be 18 years or older to use the App.
You represent and warrant that you have the authority to access the App and the information provided on the App by the Dispatcher.
You acknowledge and agree that you are downloading, accessing, and using the App on behalf of a business or organization, and that to the maximum extent permitted by law, an statutory consumer protections or legislation intended to protect individual consumers does not apply to your use of the App.
Maps are provided by a third party (depending on your mobile device); please refer to your provider's terms for rights and responsibilities.
Any location, route, and traffic data provided by the App is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Real world traffic restrictions, advisories and conditions are always more important than guidance given by third party navigation/mapping data providers. Vestigo does not guarantee the availability, accuracy, completeness, reliability, or timeliness of location data provided by the App.
YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE. Please note that continued use of GPS running in the background can dramatically decrease battery life.
You may not rent, lease, lend, sell, redistribute, sublicense decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App. Any attempt to do so is a violation of the rights of the Vestigo and its licensors. If you breach this restriction, you may be subject to prosecution and damages.
You agree not to use the App to engage in any unlawful activity, or to use the App in any manner that may impair, overburden, damage, disable or otherwise compromise (i) this or any other Vestigo service; (ii) any other party's use and enjoyment of Vestigo's services; or (iii) the services and products of any third parties. You agree to comply with all local laws and regulations governing the downloading, installation and/or use of the App.
The use of the App should not replace the judgment of user who will have a better understanding of the application.
From time to time, Vestigo may automatically provide updates for the App ("Updates"). Updates may contain, without limitation, bug fixes, patches, enhanced functionality, plug-ins and new versions of the App. By installing the App, you authorize the automatic download and installation of Updates and agree to download and install Updates manually if necessary. Your use of the App and Updates will be governed by this EULA (as amended by any terms and conditions that may be provided with Updates).
Information, documents, and materials on this mobile application are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively "marks") of Vestigo and its affiliates are and shall remain the exclusive property of Vestigo. Nothing in this Agreement shall grant you the right or license to use any of the marks.
You agree not to infringe, misappropriate, dilute or otherwise violate the intellectual property rights of Vestigo or any third party. Except for a limited license to use the App, you have no license to copy, modify, reverse engineer, download, redistribute, or resell the marks or any other intellectual property of Vestigo or others related to the App and Total Dispatch service; this intellectual property may be used only with the App unless expressly authorized by Vestigo. You agree that a violation of this section harms Vestigo, which cannot be fully redressed by money damages, and that Vestigo shall be entitled to immediate injunctive relief in addition to all other remedies available.
In the event of any third party claim that the App or your possession and use of that App infringes that third party's intellectual property rights, Vestigo, and not Apple (if you downloaded the App to an Apple iOS device) or Google (if you downloaded the App to a device with the Android operating system), will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND VESTIGO HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. VESTIGO DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VESTIGO OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APP PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
If you are using the App on an Apple iOS device, in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you, but to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Vestigo's sole responsibility.
UNLESS PROHIBITED BY LAW, WE EACH AGREE TO LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST EACH OTHER TO DIRECT AND ACTUAL DAMAGES REGARDLESS OF THE THEORY OF LIABILITY. THIS MEANS THAT NEITHER OF US WILL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT WE WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. YOU AGREE WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN 1 YEAR OF THE DATE THE CLAIM ARISES.
In no event shall Vestigo's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of TWENTY dollars ($20.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You agree to indemnify, defend and hold harmless Vestigo and its affiliates, suppliers, and agents from and against all claims, demands, liabilities, damages, losses, costs and expenses (including, without limitation, reasonable attorney fees and other costs of litigation) arising out of or relating to the use of the App or the breach of this EULA by you or any other user.
You acknowledge and agree that Vestigo, and not Apple (if you downloaded the App to an Apple iOS device) or Google (if you downloaded the App to a device with the Android operating system), is responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of that App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This paragraph will not, however, serve as a waiver or limitation of any of the other provisions in this EULA, in particular, the disclaimer of warranties and limitation of liability herein.
You may not use or otherwise export or re-export the App except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, the App may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the App, you represent and warrant that you are not located in any such country or on any such list. you also agree that you will not use the App for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
The license is effective until terminated by you, Vestigo, or your Dispatcher. Vestigo may limit, suspend or terminate your access to the App and rights under this license in its sole discretion and without notice for any reason, including, without limitation, (a) your failure to comply with any term(s) of this EULA; (b) your transfer(s) of the App to another person without our consent; (c) your use of the App in a manner that is excessive, unusually burdensome, or unprofitable to us; or (d) if your Dispatcher terminates your access or we limit, suspend, or terminate our agreement with your Dispatcher
Upon termination of the license, you shall cease all use of the App and destroy all copies, full or partial, of the App.
All representations, warranties, indemnifications, and limitations of liability contained in this EULA shall survive the termination of this EULA; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
You must comply with all applicable third party terms of agreement when using the App. If you are using the App on an Apple iOS device, you agree that Apple, and Apple's subsidiaries, are third party beneficiaries of this agreement and upon your acceptance of the terms and conditions of this agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this agreement against you as a third party beneficiary thereof.
You agree that we may provide you with notice using either contact information provided by you or your Dispatcher. You agree that your rights and obligations under this EULA are not assignable. We may freely assign our rights and obligations under this EULA with or without notice to you. This EULA shall bind and inure to the benefit of the parties and their successors and permitted assigns. Both parties are acting as independent contractors with respect to the activities hereunder.
This EULA and any other documents incorporated by reference constitute the entire agreement and understanding between the parties with respect to the subject matter of this EULA, and they replace any and all prior written or verbal agreements. If any portion of this EULA is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. If Vestigo fails to insist upon or enforce strict performance of any provision of this EULA, it shall not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this EULA. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this or any specific term or conditions hereof.
You agree to notify your Dispatcher and Vestigo immediately if you lose the device on which you downloaded the App.
This EULA shall be governed by the laws of the State of Arizona applicable to contracts to be formed and fully performed within the State of Arizona, without giving effect to the choice or conflicts of law provisions thereof.
The terms of this section entitled “Dispute Resolution” will apply to all disputes that may arise out of, are connected with or relate to this EULA and App, subject only to the following two exceptions: (1) if Vestigo reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to Vestigo or any third party, Vestigo may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court in Phoenix, Arizona, provided that all claims by all parties in the dispute fall within the jurisdiction of the small claims court but subject to the informal resolution below. Furthermore, in no event will the terms of this section limit Vestigo's ability to investigate complaints or reported violations of this EULA or to take any action Vestigo deems necessary and appropriate to mitigate actions against Vestigo including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.
If you have any dispute with us or any related third party, arising out of, relating to, or connected with the App, you agree to contact us as provided below; provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give Vestigo thirty (30) days within which to resolve the dispute to your satisfaction. If Vestigo does not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute in accordance with the arbitration agreement below.
Any claims by Vestigo, or claims by you that are not resolved by the informal resolution procedure as provided above, arising out of, relating to, or connected with this EULA or this App must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel). THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. THE ARBITRATOR MUST FOLLOW THIS AGREEMENT AND CAN AWARD THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING ATTORNEYS' FEES). This agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 USC §1, et. seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this EULA including any claim that all or any part of this EULA is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals; and (3) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided in this EULA) 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 against us or related third parties arising out of, relating to, or connected with this EULA.
WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS.
If a claim proceeds in court rather than through arbitration or small claims court, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Please contact us at the information below for customer support. Vestigo is solely responsible for providing maintenance and support services for the App. Vestigo has no obligation to provide maintenance or support for the App. Third party operating system providers such as Apple and Google have no obligation to provide maintenance or support services for the App.
You may contact our Customer Care department at email@example.com, by calling 1-888-889-5002, or by writing to: Vestigo Servicing, Inc., Customer Relations, 14537 W. Grand Ave #140-18, Surprise, AZ 85374. Notices from us to you are considered delivered when we send them to you by email or fax to any email address or fax number you or your Dispatcher provided to us. Notices from you to us are considered delivered when you send an email or 3 days after mailing to the addresses above.
To begin arbitration or other legal proceeding, you must contact our legal counsel in writing: R. Neil Irwin, Bryan Cave LLP, Two North Central Avenue, Suite 2200, Phoenix, AZ 85004.