RECITALS
These terms and conditions govern the sale of products and provisions of services by HOME SPIRIT USA CORP (“The company “or “Home Spirit”), its subsidiaries, and its affiliates as well as by third party Vendors and/or service providers of Home Spirit. These General terms and Conditions apply as well to Vendors whenever Home Spirit is appointed as their Distributor and Specific Terms in clause 11 shall apply as well. These terms and conditions (“agreement”) take precedence over Customer or Vendor’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Home Spirit’s commencement of performance nor delivery shall be deemed or constructed as acceptance of Customer or Vendor’s supplemental or conflicting terms and conditions. Home Spirit’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Customer’s acceptance of the products and/or services from Home Spirit shall be deemed to constitute acceptance of the terms and conditions contained herein.
Home Spirit and the Customer and the Vendor are collectively referred to as “the Parties”.
The General Terms and Conditions of Sale may be amended at any time at Home Spirit's discretion without any formality on the https://homespiritusa.com website or sending them by email to the Customer or the Vendor. Only the latest version will be applicable and/or the one on the date of receipt by Home Spirit of the Customer's acceptance of the offer. These amendments shall not entitle the Customer/Vendor to any compensation.
Special conditions relating to the products may be stated on the product purchase order. If this is the case, these conditions shall prevail over all other contractual conditions.
ARTICLE 1 – PLACING AN ORDER
1.1 Contractual documents
The General Terms and Conditions of Sale apply to all the products sold by Home Spirit and is the sole and entire agreement between the Parties. It supersedes and overrides any prior or contemporaneous oral or written condition relating to the same subject matter. Home Spirit may designate certain Products and Services as non-cancelable, non-returnable and the sale of such Products shall be subject to any special terms and conditions contained in the purchase order which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.
1.2 Terms for placing Orders
Orders may be sent by post to the following address:
HOME SPIRIT USA CORP
1111 LINCOLN ROAD
SUITE 508
MIAMI FL 33139
And/or by email at contact@homespiritusa.com
All orders placed by Customer or Vendor for the sale of any products or services (hereinafter "Order(s)") are subject to acceptance by Home Spirit. Orders may not be cancelled or rescheduled without Home Spirit’s written consent once Home Spirit has approved the Order by mail, e-email, or delivery of the product.
1.3 Solvency and security Interest
Customer represents to Home Spirit that Customer is solvent and capable of timely
fulfilling its payment and other obligations to Home Spirit. Until the goods and any other indebtedness of Customer have been paid for in full by Customer, Customer, or any agent of Customer or third party: (1) will hold the goods subject to a security interest or lien in favor of Home Spirit allowing for the right or re-possession by Home Spirit to the extent permitted by appliable law, (2) will not alter, remove, destroy, or damage any identifying mark on the goods or their packaging, and (3) will keep the goods separate from any other products. Home Spirit may take possession of the goods at any time after payment for the goods or any other payment owed to Home Spirit has become due.
1.4 Insecurity and Adequate Assurance
If Home Spirit ever believes in good faith that he has grounds for insecurity as to Customer’s performance under any contract between Customer and Home Spirit to purchase goods, including this Contract, then Customer shall provide adequate assurance of due performance within ten days after Home Spirit demands the assurance, which shall be considered a reasonable time. Customer’s failure to do so shall be considered a repudiation by Customer of all then-existing contracts, including the Contract, that provide for Customer to purchase goods and services from Home Spirit. “Grounds for insecurity” include, without limitation, (1) Customer’s failure to make a payment to Home Spirit or to perform another obligation under any then-existing contracts, (2) Customer’s insolvency, (3) a deterioration in Customer’s financial condition after a then-existing contract was entered into and (4) Customer’s failure to provide financial statements and other financial information to Home Spirit promptly upon Home Spirit’s request.
At all times, Home Spirit reserves the right to require a security deposit for adequate assurance of due performance, and any refusal thereof may constitute cancellation of all or part of the Order(s) placed.
ARTICLE 2 – PRICES
2.1 Pricing terms
The prices of the Products and Services are those prices specified in the invoice or written quotation. Pricing for undelivered Products may be increased in the event of an increase in Home Spirit’s costs, change in market conditions or any other causes beyond the Home Spirit’s reasonable control. Price quotations shall automatically expire sixty (60) days from the date issues, unless otherwise stated in the quotation.
The prices, information and descriptions contained in catalogues, leaflets, and all verbal quotations, are given for information purposes only. Verbal quotations shall not be binding upon Home Spirit.
All prices are stated in USD.
All price quotations are made for a specific volume of material. The prices stated are not valid for any other volume, such as Partial Orders, or Orders with staggered delivery. Quotation is not valid upon any change or alternation without written consent of the Home Spirit.
2.2 Changes to orders
If Customer or Vendor wishes to change the scope or performance of the Order, Customer or Vendor shall submit such request to Home Spirit in writing. Home Spirit shall, within a reasonable time after such request, provide a written quote to Customer of (1) any necessary variations to the fees and other charges arising from the change; (2) likely time required to implement the change; and (3) any other impact the change might have on cost or performance. Home Spirit shall not be bound by any Change Order unless in writing by Home Spirit.
Home Spirit shall have the right to make changes, in its sole discretion, to the
manufacturer, or material composition of its goods, components parts, raw materials and other supplies, but Home Spirit will not, without Customer’s approval, make a change to design and dimensional specifications submitted by Customer and agreed to by Home Spirit.
If the product characteristics or the conditions of supply by the manufacturers does not comply with the specifications determined by Home Spirit, Home Spirit reserves the right to take the contentious products off the market.
ARTICLE 3 – TERMS OF DELIVERY
3.1 Delivery and Risk of Loss
All deliveries are made “FOB.” Title and risk of loss in all goods sold hereunder shall pass to Customer upon Home Spirit’s delivery to carrier at shipping point. Delivery dates are estimated and are not guaranteed. Time is not of the essence to any delivery of goods. Home Spirit will use reasonable commercial efforts to meet Customer’s requested delivery dates, provided that Home Spirit has been provided with sufficient lead-time. Home Spirit may at its discretion, ship all the goods at one time or in multiple shipments. Home Spirit shall have the right, but not the obligation, to determine the method of shipment and routing of the goods, unless otherwise stated in Home Spirit’s quotation or acknowledgment.
3.2 Delivery
Customer shall be responsible to notify any discrepancies on the delivery.
The Customer shall be responsible for all logistical arrangements and associated
costs relative to the mechanical unloading of all Products in a safe and reasonable
manner.
If the Customer requests a postponement of the delivery date and this is expressly accepted by Home Spirit, the Customer shall bear all storage, handling and insurance costs relating to its Order.
3.3 Unavoidable Delay
If Home Spirit is unable to deliver goods or experiences a delay in its ability to deliver as a result of causes beyond Home Spirit’s reasonable control including, without limitation: an act of war, hostility, or sabotage; act of God; cyber-attack; electrical, internet, or telecommunication outage that is not caused by the obligated party; shortages of or inability to obtain labor; pandemic, epidemic, or other outbreaks of disease; act of government; unavailability of supplies, equipment, tooling or transportation; or Customer’s failure to provide necessary approval, then the estimated date of delivery or performance time shall be extended for as many days beyond the estimated date of delivery as are required to obtain removal of any such causes, and Home Spirit shall not be liable to Customer for any damages caused by the delay or failure to perform. A delayed delivery of any part of an Order does not entitle Customer to cancel other Orders. Force Majeure shall not excuse the payment of monies due.
All parties shall be excused from performance, where such cause of delay is permanent.
ARTICLE 4 - PRODUCT RETURNS
4.1 Returns, Refunds and Exchanges
The Customer shall have seven (7) days following the date of delivery to return an item by sending the Home Spirit a notification (hereinafter the "Notification") by:
- Certified letter with acknowledgement of receipt; or
- Email to the claims department at the following email address:
contact@homespiritusa.com
The Notification must be accompanied by a color photo of the relevant product, a photo of its barcode, and proof of purchase.
To be eligible for a return, the product must be unused and in the same condition that it was received.
No refunds will be accepted after this seven (7) day period, unless otherwise approved in writing by Home Spirit.
If your return is approved, Home Spirit will issue either a refund to your credit card (or original method of payment) or the replacement of the product, at Home Spirit's discretion.
Unless prior written agreement is obtained from Home Spirit, the shipping costs for returning the products shall be the sole responsibility of the Customer. Shipping costs are nonrefundable.
4.2 Limited Warranty
Home Spirit warrants to Customer that Products purchased hereunder will conform to the applicable regulations and standards for manufacture for such products. If Home Spirit breaches this warranty, Customer’s remedy is limited to (at Home Spirit’s election): (1) refund of Customer’s purchase price for such Production without interest, or (2) replacement of such Products, provided that such Products are returned to Home Spirit, along with acceptable evidence of purchase, within twenty (20) days from date of delivery. Home Spirit shall not be responsible for return shipping. No warranty will apply if the Product has been subject to misuse, neglect, accident, modification, or alteration of any kind.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS. ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, HOME SPIRIT MAKES NO WARRANTY AS TO THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
IN NO EVENT WILL HOME SPIRIT BE LIABLE TO CUSTOMER, VENDOR OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OF ANY NATURE (INCLUDING, DAMAGES FOR LOSS OF BUSINESS OR PERSONAL PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR FOR BREACH OF WARRANTY OR OTHERWISE, EVEN IF THE OTHER PARTY) HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL HOME SPIRIT’ TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO HOME SPIRIT FOR PURCHASE OF THE PRODUCTS.
DISCLAIMER – NO PROFESSIONAL ADVICE
DISCLAIMER – NO PROFESSIONAL ADVICE YOU UNDERSTAND AND AGREE THAT :
(a) TO THE EXTENT PERMITTED BY APPLICABLE LAW, HOME SPIRIT’S WEBSITE IS PROVIDED "AS-IS" AND WITH ALL FAULTS. HOME SPIRIT ASSUMES NO RESPONSIBILITY FOR AVAILABILITY (OR LACK THEREOF), TIMELINESS (OR LACK THEREOF), DELETIONS, MISDELIVERIES, OR FAILURE TO STORE ANY CONSUMER COMMUNICATIONS OR PERSONALIZATION SETTINGS. INFORMATION FROM HOME SPIRIT IS NOT INTENDED TO BE A SUBSTITUTE FOR ANY PROFESSIONAL ADVICE, INCLUDING BUT NOT LIMITED TO (A) PROFESSIONAL FINANCIAL OR INVESTMENT ADVICE OR GUIDANCE, OR (B) PROFESSIONAL LEGAL ADVICE. NEVER DISREGARD OR DELAY SEEKING PROFESSIONAL ADVICE OR OTHER PROFESSIONAL ADVICE. DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, PROCEDURES, TREATMENTS, MEDICATIONS, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED, DISCUSSED, OR DESCRIBED ON THE SITES OR IN MATERIALS OR THROUGH OUR SERVICES.
(b) HOME SPIRIT, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, REPRESENTATION OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT AND IT MAKES NO WARRANTY, REPRESENTATION OR CONDITION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF HOME SPIRIT’S WEBSITE, THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE COMPANY WEBSITE, ANY SERVICES PURCHASED OR OBTAINED THROUGH THE COMPANY WEBSITE, OR ANY TRANSACTIONS ENTERED INTO THROUGH HOME SPIRIT’S WEBSITE, AND MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT THE COMPANY WEBSITE WILL NOT BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM HOME SPIRIT OR THROUGH HOME SPIRIT’S WEBSITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR CONDITION.
4.3 Installment Order(s)
Home Spirit shall not be responsible to buy back any unsold products from the Customer pursuant to any installment Orders and/or contracts, unless otherwise accepted in writing by Home Spirit.
ARTICLE 5 – TERMS OF PAYMENT
Payment may be made by check, money order, credit card, or wire transfer (all fees are borne by the Customer).
Where Home Spirit has extended credit to Customer, terms of payment shall be net thirty (30) days from date of invoice, without offset or deduction unless otherwise noted. If Customer fails to make each payment when due, Home Spirit reserves the right to suspend or cancel performance under any and all purchase orders or agreements in which Home Spirit has extended credit to Customer. In the event of default by Customer, Home Spirit shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collection costs.
Home Spirit's prices are exclusive of sales taxes. These taxes are applied on the day of invoicing at their effective rate.
Non-payment, albeit partial, of an invoice by its due date for any reason whatsoever shall automatically result in the acceleration of invoices not yet due, making payment of all sums owed by the Customer to Home Spirit immediately due, whatever their due date.
It is expressly agreed that all products sold shall remain the property of Home Spirit until full payment on the invoice is received and deposited by Home Spirit.
ARTICLE 6 - CUSTOMER’S OBLIGATIONS
The Customer is responsible for all state and /or local permits, site preparation, site and construction inspection, and assembly thereof.
Customer is responsible for any and all local and/or state regulations for the installment, erection, construction, assembly of Home Spirit’s products.
Home Spirit shall not be liable for any product, material, or substrate to which Home Spirit’s products are to be applied.
ARTICLE 7 – TERMINATION
Any non-compliance by the Customer or Vendor with any of the clauses contained herein shall constitute a material breach, and the Order may be cancelled forthwith eight (8) days after formal notice has been sent by certified letter with acknowledgement of receipt to no avail, and without any further notice.
Upon such termination, Customer shall immediately return the products to Home Spirit.
ARTICLE 8 – INTELLECTUAL PROPERTY RIGHTS
All intellectual property rights, including without limitation copyrights, patents, trademarks, and trade secrets, in Home Spirit’s ("HOME SPIRIT”) (collectively Home Spirit)) products, software, or services, including Home Spirit’s websites, web apps, and mobile apps, are owned by Home Spirit and/or its affiliates or licensors. Your possession, access, and use of any of Home Spirit’s Products and Services do not transfer to you or any third party any rights, title, or interest in or to such intellectual property rights.
Any reproduction in whole or in part, editing, creation of derivative works from these images and/or any use of these images, showcasing photographs, photographs, videos, graphic style guides, sounds, logos, products, brands, domain names, texts or fonts, for any reason and on any medium whatsoever, without the express prior consent of the Home Spirit, is strictly prohibited.
The products delivered by Home Spirit under the trademarks "HOME SPIRIT" and/or any other trademarks used by Home Spirit may only be resold in their original packaging and in conditions consistent with their brand image.
Any Customer who becomes aware of an infringement of the trademarks or patents or designs held by Home Spirit must immediately inform Home Spirit by any means.
ARTICLE 9 - MISCELLANEOUS
9.1 Independence of the Parties
The relations established between the Parties by the General Terms and Conditions of Sale are those of independent contractors, and therefore exclude any company created de facto between them.
9.2 Insurance
Home Spirit and each party warrant that they holds a third-party insurance policy with an insurance company covering all liabilities it may incur in the performance of the Contract and undertakes to keep this insurance policy valid and up to date for the entire duration of the Contract.
9.3 Advertising and business references
The Customer expressly authorizes Home Spirit to take photographs of the products delivered and agrees to their use for advertising and commercial purposes on all types of media.
Home Spirit may use the Customer's name and logo as a commercial reference for the promotion of its products on any medium, notably on its website and/or those of its Affiliates. In this context, Home Spirit shall comply with the rules for the use of the Customer's trademarks sent in advance by the Customer, should this be required.
9.4 Non-waiver
The Parties agree that the waiver of any breach of these General Terms and Conditions of Sale by any party shall not be a waiver of prior or subsequent breach.
9.5 Severability
Every provision of these General Terms and Conditions of Sale are intended to be severable. If any term or provision hereof is determined to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the General Terms and Conditions of Sale.
9.6 Governing Law
The General Terms and Conditions of Sale shall be enforceable and construed according to the laws of the State of Florida.
ARTICLE 10 – JURISDICTION AND VENUE
The Parties agree that the courts of competent jurisdiction sitting in Miami-Dade County, Florida shall have jurisdiction in any such suit, and that venue is proper in that court.
Anything to the contrary notwithstanding, CUSTOMER or VENDOR agrees with HOME SPIRIT that, (a) all claims, disputes and other matters in contention between CUSTOMER or VENDOR and HOME SPIRIT under these General Terms and Conditions of Sale, or arising out of or relating to the subject matter of this Terms or any failures or breach resulting therefrom or thereunder shall be submitted before the jurisdiction of Miami-Dade County, Florida
ARTICLE 11 - APPOINTMENT AS DISTRIBUTOR
Whenever Home Spirit is appointed as a Distributor by a Vendor, Home Spirit shall receive a non-transferable License in connection with its performance under the Vendor ‘s Agreement. Home Spirit shall use commercially reasonable efforts to endorse, market and promote the Vendor’s products to potential customers. Vendor shall pay Home Spirit a non-refundable Subscription Fee on execution of the Vendor’s Agreement. Home Spirit shall remit to Vendor, within 30 days of the end of each calendar month, all revenue collected from the sale of Vendor’s products in such calendar month, less applicable sales taxes and less any credit card, ATM, bank, intermediary chargebacks and disallowances (“Gross Sales”) and less a percentage of Gross Sales stated in the Vendor’s agreement as the commission owing to Home Spirit (“Net Sales”). Home Spirit shall collect and remit to the appropriate taxation authority all sales taxes for the sale of the products. Vendor shall remain responsible for the payment for any and all taxes, fees, and other payments incurred, imposed on, or regarding Vendor’s income, revenues, gross receipts, personnel, real or personal property, or other assets. Home Spirit makes no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, availability, or completeness of the products. No warranty is either express or implied with respect to the Services or Home spirit ’s sale or offering for sale of the Products. Vendor agrees to defend, indemnify, and hold harmless Home Spirit and its parents, subsidiaries, and affiliates and their respective present and future officers, directors, managers, members, shareholders, employees,representatives, agents, successors, and assigns, (each, an “Indemnified Party”) on demand from any loss, claim, suit, demand, liability, damage, or cost, including reasonable attorneys’ fees (collectively, “Loss”) arising directly or indirectly out of (a) any breach or non-fulfillment by Vendor of any of its representations, warranties, covenants, or agreements hereunder; (b) any act or omission by Vendor or its personnel in connection with the performance of its obligations hereunder; (c) any bodily injury or death of any person or damage to real or tangible personal property caused by the Products, including any products liability claims related to the Products or any defect in the Products; and (d) any failure by Vendor to comply with applicable law.
ARTICLE 12 - EFFECTIVE DATE
These General Terms and Conditions of Sale take effect as of 01 April 2023 and supersedes any prior version to the date hereof.