Last Updated: June 23, 2022
These terms and conditions (the “Terms and Conditions”) are incorporated into the Order Form agreed to by BPRF Holdings, LLC d/b/a Blueprint RF (“Blueprint RF”), a Delaware limited liability company, and the client identified in the applicable Order Form (“Client”). Blueprint RF and Client together with their permitted assigns are each separately referred to as a “Party” and collectively as the “Parties”. References in these Terms and Conditions to “Agreement” shall mean the Order Form or other written in which these Terms and Conditions are incorporated between Blueprint RF and Client. The Parties are entering into this Agreement in conjunction with (i) the execution of one or more order forms (each an “Order Form”) that describe in detail equipment and installation services to be provided by Blueprint RF to Client and the terms and conditions that apply to the equipment and installation services to be provided under such Order Form and (ii) the execution of a Support and License Agreement between Blueprint RF and Client (the “SLA”), pursuant to which Blueprint RF shall provide certain on-going maintenance and support services for the goods and services purchased hereunder.
1.1 Blueprint RF provides support, consulting, training, documentation, systems integration, and call center services related to the provision of hospitality industry guest internet access (“Client Services”). Blueprint RF also provides access to discrete, networked based software services, using a variety of technologies owned by or licensed to Blueprint RF, that automate various aspects of hospitality services management and hospitality facility management (the “Blueprint RF Technology”). Client Services and licensing of Blueprint RF Technology will occur pursuant to the separate SLA entered between Blueprint RF and Client.
1.2 Pursuant to one or more Order Forms under this Agreement, Client may (i) purchase from Blueprint RF third party computer hardware and accessories (“Products” or “Blueprint RF Sourced Products”) to be used in connection with the provision by Blueprint RF of Client Services and Blueprint RF Technology and (ii) provide for the installation of the Products (“Installation Services”).
2.1 Client may order Products from time to time. Acceptance of any order is in Blueprint RF’s sole discretion. Orders are accepted only upon Blueprint RF’s and Client’s execution of an Order Form with respect to those Products.
2.2 The initial Blueprint RF Sourced Products acquired by Client pursuant to this Agreement are listed on the initial Order Form attached hereto as Exhibit A.
2.3 Client’s purchase or licensing of Blueprint RF Sourced Products shall be subject to the terms and conditions of the third party manufacturer of such Products, and Client shall be entitled to the warranties of such manufacturer, as described in Section 5.2. Client’s execution of an Order Form shall constitute Client’s agreement to such third party terms and conditions governing the ordered Blueprint RF Sourced Products. Upon full and final payment of the amounts specified on the Order Form for the Blueprint RF Sourced Products, Client will acquire title to or a license for the Products under such terms and conditions free of all Blueprint RF liens and encumbrances.
2.4 No right, title or interest in any Blueprint RF Technology is granted to Client pursuant to this Agreement even if installed on the Products. Any such license is granted solely pursuant to the SLA. Upon expiration or termination of the SLA, all Blueprint RF Technology is to be removed from the Products. Unless and until all Blueprint RF Technology is removed from the Blueprint RF Sourced Products, Client may not grant access to a Product to a third party in order to enable the third party to provide services competitive with those provided by Blueprint RF.
3.1 Blueprint RF will provide those Installation Services as described on the applicable Order Form.
3.2 In addition to such requirements as are set forth on the applicable Order Form, in providing the Installation Services, Blueprint RF will:
(a) coordinate with the property management so as to minimize disruption and inconvenience to guests;
(b) facilitate the provisioning of network services to support the network requirements for bringing identified third party IP-based systems and devices onto the property’s network;
3.3 Blueprint RF shall comply with all rules, regulations and laws in connection with the provision of the Installation Services at Client’s worksites and shall comply, and cause all subcontractors, agents and employees to comply, with such rules, regulations and laws.
3.4 Blueprint RF shall, if necessary with the reasonable assistance of Client, secure all installation approvals, certificates and permits that may be required for the proper execution and completion of the Installation Services.
3.5 Blueprint RF will not be responsible for providing any premise wiring work unless such work is explicitly stated within the Order Form.
4.1 The prices for the Products and Installation Services will be stated in the applicable Order Form. The prices listed in the Order Form will remain in effect only for the orders made contemporaneously with the execution of the Order Form unless the Order Form expressly provides that such pricing shall be honored for a specified period; provided that Blueprint RF may revise pricing of equipment to reflect price increases imposed by Blueprint RF’s equipment suppliers.
4.2 Unless otherwise provided in the Order Form, all payments will be made in U.S. dollars to Blueprint RF at the address specified by Blueprint RF from time to time. Unless otherwise provided in the Order Form, payment is due 30 days after the receipt of the correct invoice by Client’s proper billing contact. If Client disputes any portion of an invoice, Client must notify Blueprint RF in writing within 10 days of the receipt of the invoice by Client’s proper billing contact. A dispute as to any portion of an invoice does not relieve Client from timely payment of the undisputed portion.
4.3 When commercial transportation, overnight accommodations, living expenses, or travel costs are incurred by Blueprint RF in carrying out its obligations under an Order Form, Client will pay to Blueprint RF those reasonable, actual expenses. Blueprint RF agrees to comply with Client’s travel policies and expense approval procedures described on or incorporated by reference into the Order Form.
4.4 Blueprint RF shall have a right to suspend the performance of all Installation Services and delivery of Products provided under an Order Form for any default in payment with respect to that Order Form if the default occurs for any reason other than a good faith dispute. A default in payment shall occur if Client does not pay the undisputed portion of any past due invoices within fifteen (15) days after receipt of written notice from Blueprint RF specifying the invoices then past due. Any payment more than 30 days past due will accrue interest at a rate of one percent (1%) per month or the highest rate allowed by applicable law, whichever is lower.
4.5 Except as provided in this section 4.5 or in the applicable Order Form, Client will pay all international, federal, state, or local tariffs, duties, withholdings, and taxes based on any fees or charges based on the licensing or sale of any Products or their use by Client, whether the tariffs, duties, or taxes are now or hereafter imposed by the jurisdictions (other than taxes on Blueprint RF’s net income or a penalty which may result from the negligence of Blueprint RF in withholding, collecting or remitting an amount for which Client is responsible). Blueprint RF shall cooperate with Client as reasonably necessary for Client to establish with a relevant taxing authority Client’s exemption from tax on the goods and services purchased under this Agreement. In the event such exemption is rejected, Client shall pay for taxes imposed in conjunction with this Agreement, including sales, use, excise and similar taxes based on or measured by charges payable under this Agreement and imposed under authority of federal, state or local taxing jurisdictions. This Client obligation specifically excludes foreign, federal, state and local taxes generally based upon Blueprint RF’s revenues or net income, the number of Blueprint RF’s employees, or Blueprint RF’s corporate existence.
5.1 Blueprint RF warrants for a period of 60 days after the performance of any Blueprint RF Installation Services (the “Services Warranty Period”), that the Services will be performed in a professional and workmanlike manner, consistent with generally accepted industry standards and will substantially conform to the applicable specifications for the Installation Services contained in the Order Form (the “Specifications”). Blueprint RF agrees to re-perform any Blueprint RF Installation Services not meeting the foregoing warranty so that the Blueprint RF Installation Services substantially conform to the warranty set forth above. Client must notify Blueprint RF in writing within the Services Warranty Period of any claimed breach of warranty and the nature of the claimed nonconformities. Any notice must be sufficiently detailed to allow Blueprint RF to recreate or otherwise confirm any nonconformity.
5.2 The only warranty applicable to any Blueprint RF Sourced Products will be the warranty provided by the manufacturer of the Product. For any Blueprint RF Sourced Products, Blueprint RF will assign to Client all end-user warranties and indemnities relating to such Blueprint RF Sourced Products. To the extent that Blueprint RF is not permitted to assign any of such end-user warranties and indemnities through to Client, Blueprint RF shall enforce such warranties and indemnities on behalf of Client to the maximum extent Blueprint RF is permitted to do so under the terms of the applicable third-party agreements.
5.3 Blueprint RF shall not be responsible for, and does not warrant any Product, its performance or any of its components or any Installation Services in connection with any Products from defects or operational deficiencies resulting from:
(i) Client’s failure to take good and proper care of the Products and to house and maintain any hardware Products appropriately in accordance with instructions provided by Blueprint RF and reasonable business practices;
(ii) theft, fire, flood, accident, explosion or acts of God;
(iii) misuse of the Products by the user or additions to the Products not approved or fitted by Blueprint RF;
(iv) inspection, adjustment or repair of the equipment by persons not in the employ of, contracting with or authorized by Blueprint RF except to the extent contemplated hereby or requested by Blueprint RF;
(v) system or network problems experienced by Client as the result of infrastructure problems not controlled by or authorized by Blueprint RF;
(vi) system or network problems resulting from broadband Internet connectivity problems.
5.4 Other than as expressed in this Section 5, NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE MADE WITH RESPECT TO ANY PRODUCTS OR ANY SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ERROR-FREE USE, ORIGINALITY, OR FITNESS FOR A PARTICULAR PURPOSE.
5.5 If Blueprint RF breaches the warranty with respect to Blueprint RF Services, and Blueprint RF is unable to provide prompt substitute services, the reperformance of any defective services in the judgment of Blueprint RF is impracticable, or the re-performance of the Blueprint RF Services would not cure the breach or restore Client’s loss, Blueprint RF’s liability is limited to the lesser of
(i) The amount specified in the Order Form to remedy a specific breach; or
(ii) The amount paid by Client for the defective Blueprint RF Services.
The refund of any amount is the sole remedy of Client and the sole liability of Blueprint RF for the furnishing of or the failure to furnish the applicable Blueprint RF Service or breach of any specification with respect to the defective Blueprint RF Services, including but not limited to mistakes, omissions, interruptions, delays, tortious conduct, representations, errors, or other defects, whether caused by acts of commission or omission.
5.6 EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 5 OR ELSEWHERE IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE ORDER FORM, ALL SERVICES AND PRODUCTS PROVIDED BY BLUEPRINT RF ARE PROVIDED BY BLUEPRINT RF “AS-IS.” BLUEPRINT RF SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING , BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
5.7 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF THE PARTY WAS ADVISED OF THE POSSIBILITY OF THESE DAMAGES, AND WHETHER ARISING UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE.
5.8 The parties acknowledge that Blueprint RF has set its prices and undertaken the obligations in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
6.1 Client and Blueprint RF acknowledge that in the course of performance of any Order Form they may be supplied with confidential information of the other Party. If one of the Parties is so advised by the other in writing that specific information is confidential information, or by the nature of the material it is reasonable to assume that it is confidential information (“Confidential Information”), the receiving Party must not, without the disclosing Party’s prior written consent, disclose any Confidential Information to, or permit access to any Confidential Information by, any person other than the receiving Party’s or its affiliate’s authorized employees and agents, nor may the receiving Party permit any person subject to its control to copy, use, or disclose any Confidential Information in violation of or beyond the licenses provided and the terms of the Order Form. Both Parties will take reasonable precautions, but not less than those employed to protect their own similar proprietary information, to prevent Confidential Information from being copied, reproduced, used, or disclosed to unauthorized persons. Both Parties will inform their authorized agents and employees who may have access to Confidential Information that Confidential Information may not be copied, used, disclosed, de-compiled, or otherwise utilized in violation of the Order Form.
6.2 Notwithstanding the confidentiality obligations required in Section 6.1, neither Party’s confidentiality obligations apply to information which:
(i) is already known to the receiving Party;
(ii) becomes publicly available without fault of the receiving Party;
(iii) is rightfully obtained by the receiving Party from a third party without restriction as to disclosure,
(iv) is approved for release by written authorization of the Party having the rights in the Confidential Information; or
(v) is developed independently by the receiving Party without use of the disclosing Party’s Confidential Information.
6.3 Additionally, either Party may disclose the Confidential Information of the other if required to be disclosed by law, provided that prior to making the required disclosure, the Party who is required to disclose the Confidential Information must notify the owner of the Confidential Information that disclosure is legally required and provide reasonable assistance to the disclosing Party to obtain a protective order.
6.4 The obligations in this Section 6 survive any expiration or termination of this Agreement for 2 years provided that:
(i) With respect to trade secrets, the obligations survive for so long as applicable law allows the restriction of the disclosure of trade secrets; and
(ii) With respect to information subject to laws or regulations requiring the maintenance of confidentiality for a longer period, the obligation of confidentiality continues for so long a legally required.
7.1 Blueprint RF’s obligations under this Agreement are dependent on and conditioned upon Client’s reasonable cooperation with Blueprint RF in said process. Without in any way limiting this general obligation of cooperation, Client agrees that:
(a) Client shall make its principal contact, or such other individual(s) as agreed upon by the parties, available to Blueprint RF at reasonable times to facilitate support of the Products, which may include, but not be limited to, rebooting the system, visually troubleshooting the system, or other similar tasks;
(b) Client shall grant Blueprint RF access to all parts of the hotel or other applicable property necessary for the support of the Products;
(c) To the extent permitted by the hotel property’s franchisor, Client shall place and maintain all applicable marketing and instructional materials in a visible location in the hotel rooms and common areas;
(d) Client shall periodically inspect the Products and promptly report any malfunction to Blueprint RF;
(e) Upon reasonable prior notice, Client shall provide one (1) parking space and one (1) guest room free of charge (including any applicable surcharges) for each member of the Blueprint RF support team required to test or maintain the Products;
(f) Client shall not install additional equipment and materials or in any way modify the Products except to the extent instructed to do so by Blueprint RF;
7.2 Client must acquire from a third party provider, on terms acceptable to Blueprint RF in the exercise of its reasonable discretion, broadband Internet connectivity sufficient to support the Products ordered by Client.
8.1 Unless sooner terminated in accord with this Section 8, the term of any Order Form is the term stated in the applicable Order Form.
8.2 Blueprint RF may terminate an Order Form immediately upon written notice at any time if:
(i) Client has failed to make a payment when due and such failure continues for a period of 10 days after written notice thereof;
(ii) Client otherwise is in material breach of an Order Form and fails to cure that breach within 30 days after written notice of the breach; or
(iii) Client becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency; or suffers or permits the commencement of any form of insolvency or receivership proceeding; or has any petition under any bankruptcy law filed against it, which proceeding or petition is not dismissed within 90 days of its filing; or has a trustee or receiver appointed for any part of its business or assets.
8.3 Client may terminate an Order Form immediately upon written notice at any time if:
(i) Blueprint RF is in material breach of the Order Form and Blueprint RF fails to cure that breach within 30 days after written notice of the breach; or
(ii) Blueprint RF makes any assignment for the benefit of creditors or similar transfer evidencing insolvency; or suffers or permits the commencement of any form of insolvency or receivership proceeding; or has any petition under any bankruptcy law filed against it, which proceeding or petition is not dismissed within 90 days of such filing; or has a trustee or receiver appointed for any part of its business or assets.
8.4 In the event of termination or expiration of an Order Form for any reason, Sections 2, 4, 5, 6, 9, 10 and 12 of these Terms and Conditions survive termination. Neither Party is liable to the other for damages of any sort resulting solely from that Party terminating an Order Form in accordance with its terms.
8.5 The rights and remedies given to each Party under this Section 8 are in addition to any other rights or remedies that a Party may have under the circumstances, all of which are expressly reserved.
9.1 Any notice or communication will be sent to the addresses set forth below or to another address as may be furnished in writing by either Party to the other Party in accordance with this Section 9.1. Any notice or communication sent by the following means will be deemed to have been given on the earlier of the date of actual receipt or 5 business days after being sent in the manner provided:
(i) Delivered by hand,
(ii) Deposited with an overnight courier, or
(iii) Sent first class mail (registered or certified only), return receipt requested and postage prepaid.
9.2 In addition to the methods set forth in Section 9.1, any notice or communication may be given by email or facsimile provided that a person with authority from the recipient to accept notices or communications actually receives the notice. The notice will be deemed to have been given as of the date it is received by the authorized person. The Party sending a communication by email or facsimile will have the burden of proof with respect to establishing the other Party’s receipt in accord with this Section 9.2.
10.1 Blueprint RF and Client shall each indemnify, defend and hold harmless the other party and their respective officers, directors, shareholders, members, partners, agents, servants, employees, agents or contractors (including, in the case of Blueprint RF, Manager) (collectively, “Indemnitees”) from and against all third party claims and any and all resulting losses, liabilities, judgments, claims, obligations, damages, penalties, costs, fees and expenses (including reasonable attorneys’ fees, disbursements and court costs) for damage to any physical property or bodily injury or death to any person (a “Claim”) to the extent caused by an act or omission of the indemnifying party, such indemnifying party’s affiliates and/or their respective employees, agents or contractors, except to the extent that such Claim is a result of an act or omission of the Indemnitees; If either party is obligated to indemnify the other party hereunder, then the Indemnitee must give the indemnifying party prompt written notice of any Claim; provided, however, that the failure to provide such notice shall not release the indemnifying party from any of its indemnification obligations hereunder, except to the extent that the indemnifying party demonstrates that the defense of such Claim is materially prejudiced by such failure. Upon receipt of notification of a Claim, the indemnifying party shall promptly assume full responsibility for the defense of the Claim; provided however, that the indemnified party shall have the right to participate in the defense of any such Claim at its own expense. In no event shall the indemnifying party settle any Claim without the Indemnitee’s prior written consent to the extent such settlement (i) admits any liability on the indemnified party’s part or (ii) requires the indemnified party to make any payment that is not immediately reimbursed by the Indemnitee. If both parties are jointly liable for a Claim, then each party shall be liable solely to the extent that such Claim resulted from its acts or omissions.
10.2 Blueprint RF shall comply with the insurance requirements set forth in Section 8 of the SLA. The provisions of Section 8 of the SLA with respect to such insurance requirements and are incorporated herein, mutatis mutandis, and Blueprint RF acknowledges and agrees that such provisions form an integral part of this Agreement, and shall be binding upon it and have the same effect as if set forth directly herein.
11.1 Neither Party may assign this Agreement or any Order Form without the written consent of the other which will not be unreasonably withheld. Despite the preceding sentence, either Party may freely assign or transfer its rights or obligations under an Order Form:
(i) if the transfer occurs by operation of law under a bona fide merger, divestiture, consolidation, or reorganization, or to any purchaser of all or substantially all of the assets of the business of the assigning Party, provided the assignee is bound by this agreement and is not a direct competitor of the non-assigning Party;
(ii) to any entity that controls, is controlled by or under common control with the assigning party; or
(iii) to any lending institution, surety or guarantor as security for any obligation of a Party.
11.2 Notwithstanding any assignment, the Party making the assignment remains liable for the payment and performance of all commitments made and obligations incurred prior to the date of notice of assignment.
11.3 Blueprint RF may subcontract some or all of the Services without the consent of Client. Blueprint RF remains liable for the subcontracted Services in the same manner as if the Services were provided by Blueprint RF directly.
12.1 Blueprint RF and Client are independent contractors and no Order Form will establish any relationship of partnership or agency.
12.2 This Agreement is construed, enforced, performed, and in all respects governed by and in accordance with the laws in the State of Georgia without reference to conflict of law principles or the United Nations Convention on the International Sale of Goods.
12.3 If any provision of an Order Form is declared void or unenforceable for particular facts or circumstances, that provision remains in full force and effect for all other facts or circumstances. If any provision of an Order Form is declared entirely void or unenforceable, that provision is severed from an Order Form, the balance of which remains in full force and effect. If any conflict or inconsistency is found between an Order Form and these Terms and Conditions, then the conflict will be resolved in favor of the Order Form except as regards those matters addressed in Section 6.
12.4 Each Party is responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under the Order Form. No waiver of any breach of any provision of an Order Form is a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions, and no waiver is effective unless made in writing and signed by an authorized representative of the waiving Party.
12.5 Neither Party is liable to the other, nor will any remedy be extended, for any delay or failure of performance or failure of a Service due to causes beyond the Party’s reasonable control, including but not limited to: acts of God, meteorological, hydrological or geological conditions or other catastrophes caused thereby; any law, order, regulation, direction, action, or request of any governmental or regulatory entity or agency, or any civil or military authority; emergencies; civil unrest, insurrections, riots, wars, or terrorist attacks; epidemics or pandemics; third party services or materials; labor difficulties (other than in connection with such party’s own labor force); or transmission failures, telecommunication line or power breaks or outages, viruses, denial of service attacks, or failure of the internet, in each case which is beyond the control of such party. Should either party invoke the provisions of this Section 12.5, the other party may suspend its performance during such period of delay.
12.6 Except as specifically set forth in an Order Form, all consents and approvals to be given by either Party under the Order Form will not be unreasonably withheld or delayed and each Party will make only reasonable requests under the Order Form.
12.7 Client will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with any Order Form without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Client operates or does business.
12.8 There are no third party beneficiaries to any Order Form, including but not limited to the insurance providers for either party or the customers of Client.
12.9 The Agreement, together with each Order Form and the SLA, contains the entire agreement of the Parties with respect to the Products and Services covered by it. Neither this Agreement nor any Order Form may be amended or modified except in a writing signed by both parties, and any attempt at oral modification, is void and of no effect