Mobile Application End User License Agreement
Please read this Mobile Application End User License Agreement (“EULA”) carefully before using Eos Tools Pro mobile application (“Mobile App”), including its current and future embedded solutions (e.g., Eos Locate™ for ArcGIS®, Eos Laser Mapping™ for ArcGIS®), which allows You to access Eos Tools Pro internet-delivered service (“Service”) from Your mobile device. This EULA forms a binding legal agreement between you (and any other entity on whose behalf you accept these terms) (collectively “You” or “User”) and Eos Positioning Systems, Inc., a Canadian corporation with a principal place of business in Quebec, Canada (“Eos,” each separately a “Party” and collectively the “Parties”), as of the date you download the Mobile App. Your use of the Mobile App and Service is subject to this EULA.
This EULA includes an agreement to binding arbitration and a class action waiver. If you accept this agreement, You and Eos agree to resolve disputes in binding, individual arbitration and give up the right to go to court individually or as part of a class action. If you do not agree to these terms, delete from your device and do not use this Mobile App.
IF YOU AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, SIGNIFY YOUR ACCEPTANCE BY SELECTING THE “YES, I AGREE WITH THE TERMS AND CONDITIONS REPRESENTED BY THIS EULA” BUTTON AT THE END OF THE EULA. ADDITIONALLY, BY USING THE MOBILE APP YOU ARE AGREEING WITH THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT USE THE MOBILE APP OR THE SERVICE.
BY CONFIRMING YOUR ACCEPTANCE, YOU FURTHER CONFIRM THAT YOU ARE 18 YEARS OF AGE OR OLDER AND/OR OF LEGAL AGE IN YOUR COUNTRY OF RESIDENCE TO ENTER INTO A BINDING AGREEMENT. BY CONFIRMING YOUR ACCEPTANCE, YOU FURTHER CONFIRM THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT AS WRITTEN IN ENGLISH.
The Mobile App and Service are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Mobile App and Service are licensed, not sold to You.
Eos expressly reserves all rights not expressly granted to You.
The Mobile App and Service are not being sold or conveyed to You. Instead, Eos grants You only a revocable, non-exclusive, non-transferable, non-sublicensable limited right and license to download, install, and use the Mobile App and Service on devices owned or otherwise controlled by You or Your employer to access the Service in accordance with this EULA (the “License”). The rights that Eos grants You under the License are subject to the terms of this EULA and you may only make use of the License if You comply with such terms.
Though Eos is granting the License to You, Eos retains all right, title, and interest in and to the Mobile App and Service, including all intellectual property rights throughout the world, as set forth in Section 5.
Eos reserves the right to modify this EULA at any time and for any reason. If Eos makes material changes to this EULA, You will receive notification via the Mobile App and be required to execute an amended EULA in order to continue using the Mobile App and Service.
Eos may deploy changes, updates, or enhancements to the Mobile App or Service accessed through the Mobile App at any time. You hereby acknowledge that Eos has no obligation whatsoever to furnish such services or provide You with any support for the Mobile App or Service and Eos may terminate such services or support at any time without notice. You acknowledge that neither Apple (for iOS Mobile App), nor Google (for Android Mobile App), nor Microsoft (for Windows Mobile App) has an obligation to furnish any maintenance or support services in connection with the Mobile App or Service.
Eos may, in its sole discretion, develop and provide the Mobile App and Service, which may include updates, bug fixes, patches and/or create new features. These updates may also modify or delete certain features and/or functionality. You agree that Eos has no obligation to provide any updates or to continue to provide or enable any particular features or functionality.
Notwithstanding the above, You should regularly check the app store or site from which you downloaded the Mobile App (e.g., Google Play Store for Android users, the Apple App Store for iOS users, or the Eos website for Windows users) for any updates, upgrades, patches or fixes made available. You understand that the Mobile App or Service may not properly function if you fail to install any of the foregoing. Further, Eos shall not be responsible for any consequences associated with Your failure to update, upgrade, fix or patch the Mobile App.
4. Use, Restrictions and Limitations
a. You agree that You will not use or encourage others to use the Mobile App or Service accessed through the Mobile App in a way that could harm or impair others’ use of the Mobile App or the Service. You further agree not to violate any usage limits or controls set forth by (a) the App Store Terms of Service, for iOS users accessing the Mobile App on an Apple Product, or (b) Google Play Terms of Service for Android users accessing the Mobile App on an Android product.
b. The License granted under this EULA is restricted by the terms set forth in Section 1. The limited License set forth in Section 1 does not permit You to:
i. Analyze, modify, adapt, reverse engineer, decompile, disassemble, or otherwise reduce the Mobile App or Service to another form;
ii. Create derivative works based on the Mobile App, Service or any part thereof, or attempt to recreate the functionality of the Mobile App or Service in any manner;
iii. Copy the Mobile App or Service, reproduce it through any electronic or mechanical means, or distribute copies (any unauthorized copying is expressly prohibited);
iv. Rent, lease, resell, sublicense, assign, distribute, publish, transfer or otherwise make available the Mobile App or Service, or any features or functionality of the Mobile App or Service to any third-party for any reason, including making the Mobile App available on a network where it is capable of being accessed by more than one device at any time except for Mobile Device Management (MDM) deployments within an organization;
v. Broadcast, display or present the Mobile App or Service in any manner competitive with Eos or in order to compete with Eos;
vi. Remove, delete, alter, or obscure any trademark, copyright, patent marking, or other intellectual property or proprietary rights notice from the Mobile App, including any copy thereof;
vii. Remove, disable, circumvent, modify, or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Mobile App or Service; or
vii. Pass off the Mobile App or Service as Your own or as owned by anyone other than Eos.
5. Ownership and Intellectual Property Rights
Eos retains all title, ownership rights, intellectual property rights, and trade secrets in and to the Mobile App and Service, including all subsequent copies and updates to the Mobile App and Service, regardless of the form or media used, throughout the world. You do not acquire any ownership interest in the Mobile App or Service under or pursuant to this EULA, or any other rights other than a right to use the Mobile App and Service in strict accordance with the limited License granted herein, subject to all terms and restrictions under this EULA.
6. Disclaimer; Waiver of Warranty
a. YOUR USE OF THE MOBILE APP AND SERVICE IS AT YOUR SOLE RISK AND USER WAIVES ANY AND ALL WARRANTIES RELATED TO THE SAME.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MOBILE APP AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE MOBILE APP OR SERVICE AND EOS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT (INCLUDING BUT NOT LIMITED TO UNDER UCC 2-312 AND ARTICLE 42 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS), UNDER § 13 OF THE SALE OF GOODS ACT, AND UNDER BOOK 5, TITLE 2, CHAPTER 1, DIVISION 1, § 4 OF THE CIVIL CODE OF QUEBEC.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EOS FURTHER DISCLAIMS ALL WARRANTIES PURSUANT TO SECTION 1732 OF THE CIVIL CODE OF QUEBEC AND ANY OTHER WARRANTIES THAT MIGHT OTHERWISE ARISE OUT OF A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, EOS PROVIDES NO WARRANTY THAT THE MOBILE APP OR SERVICE
 Pursuant to Section 1733 of the Civil Code of Quebec, Eos discloses that the Eos Locate™ when used in conjunction with certain third-party software and hardware has been accused of infringing U.S. Patent Nos. 7,834,806, 8,081,112 and 7,978,129 in a court action pending in United States District Court for the District of Delaware, Docket No. 22-cv-00201-MN. Eos denies infringement and has sought a judgment from the Court that these patents are invalid and not eligible for patent protection.
WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE STANDARDS, BE ERROR-FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
b. The Mobile App and Service are only available for supported devices and might not work on every device. Determining whether Your device is supported or compatible for use of the Mobile App is solely Your responsibility, and downloading the Mobile App is done at Your own risk. Eos does not represent or warrant that the Mobile App and Your device are compatible or that the Mobile App will work on Your device.
c. Provision of the Mobile App and Service under this EULA shall not create any obligation for Eos to continue to develop, produce, support, repair, provide or in any other way continue to provide or develop the Mobile App or Service either to You or to any other party.
d. The Service utilizes GNSS technology and is not fail-safe. Eos shall bear no responsibility whatsoever for any inaccuracy, incompleteness or other defect of data obtained from a global navigation satellite systems (“GNSS”) or receiver used together with the Mobile App and Service. Eos shall bear no responsibility for any non-performance of the Mobile App or Service, such as insufficient GNSS signals or any changes to the GNSS signals available (such as Selective Availability or any other signal degradation).
e. Without limiting the foregoing, the Mobile App and Service may display, include or make available third-party content. You acknowledge and agree that Eos is not responsible for any third-party materials and/or content, including without limitation their accuracy, completeness, timeliness, validity, legality, or any other aspect thereof. Third-party materials and/or links may be provided solely as a convenience to You, and your access and use of them is entirely at your own risk and subject to such third-parties’ terms and conditions.
7. Limitation of Liability and Release
a. In consideration for Eos providing the Mobile App and Service to You for free, to the fullest extent allowed by law, You hereby grant Eos a full and complete release against any and all liabilities, obligations or damages, including but not limited to special, punitive, indirect, or consequential damages or loss, or lost revenue or profits in connection with or arising out of this EULA or the existence, furnishing, functioning or use of the Mobile App or Service.
b. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EOS HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OR INABILITY TO USE THE MOBILE APP OR THE CONTENT OR SERVICE FOR: PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR DEVICE FAILURE OR MALFUNCTION.
c. In the event that a full release is not enforceable in your jurisdiction, You hereby expressly agree that Eos’s sole liability of any kind with respect to the Mobile App or Service, whether the claimed liability is based on a defect, either discoverable or latent, in the Mobile App or Service, including negligence, shall be limited to that determined by binding arbitration as set forth in § 12 of this EULA, and in no event shall such liability include punitive damages or exceed $100,000 CAD.
d. THE LIMITATIONS IN PARAGRAPHS A, B AND C OF THIS SECTION 7 APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORSEEABLE OR EOS WAS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.
e. User will be solely liable for any damage to the Mobile App and/or Service caused by User, including but not limited to damage caused by misuse, unauthorized alteration, modification or enhancement of the Mobile App or Service, failure to maintain a suitable operating environment, or the use of the Mobile App or Service for other than the purposes for which it was designed.
f. In no event shall Eos be liable with respect to any third-party materials, databases and/or their content, including all implications arising from any error or malfunction of such third-party resources.
You agree to indemnify, pay the defense costs of, and hold harmless Eos and its respective employees, managers, shareholders, officers, directors, agents, contractors, successors, heirs, assigns, and other representatives from all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs, and expert witnesses’ fees) that arise from or in connection with (a) any claim that, if true, would constitute a breach by You of this EULA or negligence by You, or (b) any act or omission by You in using the Mobile App and Service. You agree to reimburse Eos on demand for any defense costs incurred by Eos and any payments made or loss suffered by Eos, whether in a court judgment or settlement, based on any matter covered by this Section 8.
If You are prohibited by law from entering into the indemnification obligation above, then You assume, to the fullest extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation above.
Eos shall be entitled to terminate this EULA with immediate effect if You fail to comply with any term or condition of this EULA. In such event, You must irreversibly destroy all copies of the Mobile App and Sections 4, 5, 6, 7, 8, 11 and 12 of this EULA shall survive any termination. Eos reserves the right to discontinue any of its services under or in connection with this EULA.
10. Personal Information
Eos is not currently collecting or retaining personal information about You through the Mobile App or Service. Should this change, You will receive notification via the Mobile App and be required to execute an amended EULA in order to continue using the Mobile App.
11. Miscellaneous Provisions
a. You agree that You will not use the Mobile App or Service for any purpose prohibited by law, and if You do You will be solely liable for any and all damages caused by such prohibited use.
b. This EULA is the entire agreement between You and Eos with respect to the Mobile App and Service and supersedes all prior or contemporary oral or written communication, offers, declarations or representations in relation to the Mobile App and Service. Should any part or provision of this EULA be held invalid, void, or not enforceable, such fact shall not affect any other part or provision of this EULA, which shall continue with unchanged force and effect and the invalid, void, or unenforceable provision shall be interpreted so as to best accomplish the objectives thereof within the limits of applicable law.
c. The English version of this EULA is the governing language version, and any translations thereof are provided to You for Your convenience only.
d. This EULA and any disputes arising out of or in connection with this EULA shall be governed by the laws of Quebec, Canada and shall be resolved in accordance with Section 12 of this EULA. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason, Section 12’s Arbitration provision or Class Action Waiver is found to be unenforceable, any dispute between the Parties shall be settled by a court in Quebec.
e. The failure of Eos to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision.
f. TO THE EXTENT ALLOWABLE BY LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
h. You may terminate this EULA with immediate effect at any time by uninstalling all copies of the Mobile App. However, Sections 4, 5, 6, 7, 8, 11 and 12 of this EULA shall survive any termination.
i. This EULA is effective from execution until terminated by You or by Eos.
12. Arbitration; Class Action Waiver
a. YOU AND EOS AGREE THAT ALL CLAIMS BETWEEN THE PARTIES WILL BE RESOLVED IN AN INDIVIDUAL ARBITRATION (NOT IN COURT). YOU AND EOS AGREE THAT THE ALTERNATIVE DISPUTE-RESOLUTION PROCESS OF ARBITRATION WILL RESOLVE ANY DISPUTE MORE FAIRLY, QUICKLY, AND EFFICIENTLY COMPARED TO FORMAL COURT LITIGATION.
WE BOTH AGREE THAT THERE WILL BE NO CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTIONS IN ARBITRATION. In addition, neither You nor Eos may participate in a class or representative action in court as a class member if the claims asserted therein relate in any way to this EULA or this EULA or any provision herein is asserted by You or Eos. To be clear, You and Eos both waive any right to participate in any class action involving disputes between the Parties.
b. Authority. The arbitrator’s authority is governed by this arbitration agreement. You and Eos agree that the arbitrator may award the same relief that a court of competent jurisdiction could award, consistent with and limited by this EULA, but the arbitrator may not award declaratory or injunctive relief or punitive damages.
c. Procedures. Any arbitration between You and Eos will be governed exclusively by the Arbitration Rules of the ADR Institute of Canada (“ARDIC”), as modified by this EULA, and will be administered by the ADRIC, and judgment on the award rendered by the arbitrator(s) may be entered in any court having competent jurisdiction. The arbitration will be conducted by a single arbitrator selected pursuant to § 3.1 of the ARDIC Arbitration Rules.
d. Notice. Any Party who intends to seek arbitration must first send to the other, by Federal Express or comparable overnight courier, a written Notice of Dispute (“Notice”). The Notice to Eos should be addressed to:
Eos Positioning Systems, Inc.,
1181 Rue de l’Express,
Terrebonne QC, J6W 0A2 Canada.
Attn: Notice of Legal Dispute Under Eos Tools Pro EULA
e. Any in-person arbitration hearings will take place at a location in the greater Montreal area of Canada.
f. YOU AND EOS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
13. Contact Information
If you have any questions regarding this EULA, please contact Eos via this web form or by phone at 1(450) 824-3325 (Canadian charges may apply).
Last updated – May 2023