UNITED STATES
GENERAL TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of Sale (the “GTC”) define the terms and conditions under which COSMO INTERNATIONAL FRAGRANCES (“Cosmo”) sells its fragrance products (“Products”) to any professional buyer (“Client”) identified in the Confirmation Order. The GTC are available on Cosmo’s official website cosmo-fragrances.com/sales-terms-conditions and are incorporated by reference into each Confirmation Order. By placing an order and receiving a Confirmation Order, the Client acknowledges and accepts the GTC in force at that date. The GTC prevail over any other conditions issued by the Client, including its general terms and conditions of purchase, which are expressly excluded. In the event of contradiction between the GTC and a Confirmation Order, the Confirmation Order shall prevail.
1. Definitions
“Agreement”: means the contractual documentation including the GTC, the Confirmation Order, the Quotation and annexes.
“Confirmation Order”: binding document issued by Cosmo confirming the Client’s order.
“Quotation”: document issued by Cosmo detailing the commercial terms of sale.
“Prototype”: fragrance prototype developed by Cosmo and based on the Client’s brief.
“Specifications”: Product characteristics and technical details validated by the Client upon approval of the Prototype (olfactory character, regulatory status and any specific request outlined in the Client’s brief and validated at the Prototype phase).
2. Product Development & Order Placement
2.1. Product development. The Client shall provide Cosmo with a brief summarizing its needs. Upon receipt of the Prototype, the Client shall approve it in writing or provide a report of required changes. Any order placed for a Product based on a Prototype shall be deemed to constitute acceptance thereof. Cosmo reserves the right to modify the manufacturing process and/or substitute materials at any time without prior notice in order to optimize production or comply with the Quotation, it being understood that such modifications shall not affect the Specifications.
2.2. Order placement. Based on the Client’s brief or the Prototype, Cosmo will issue a Quotation setting out the designation of the Product and the unit price of the Product. The Quotation remains valid for three (3) months from issuance. Each order must be placed in writing, referencing the Quotation and specifying: Product reference(s), quantity, desired delivery date, any special packaging requirements and delivery address, if necessary. The order becomes firm and final once Cosmo issues the Confirmation Order. No modification or cancellation is valid without Cosmo’s prior written consent. In the event of cancellation of a Confirmation Order, the Client shall reimburse Cosmo for: (i) all raw materials and packaging purchased specifically for that order; and (ii) any manufacturing costs already incurred; both within thirty (30) calendar days of Cosmo’s written request accompanied by supporting documentation.
3. Delivery & Receipt
3.1. Delivery. Products are made available at Cosmo’s premises under EXW (Ex Works) Incoterm, unless otherwise specified in the Order Confirmation. Therefore, the Client bears all risks and costs relating to transport, loading, shipment, customs clearance and delivery from that point. Delivery times are stated in the Confirmation Order. Cosmo may reduce, delay or suspend deliveries due to causes beyond its control (shortage of raw materials, disruptions in energy supply or transport supplier delays, equipment failure, force majeure, etc.) without liability. In addition, Cosmo shall not be liable for any delay attributable to the Client’s failure to provide timely instructions, approvals or payments. Ownership of the Products is transferred to the Client only upon full payment of the purchase price, regardless of the Incoterm applicable and the date of collection or shipment. Accordingly, Cosmo reserves the right to retain the Products or seek enforcement of the sale, at the Client’s expense, cost and risk, without prejudice to any other legal remedies available.
3.2. Receipt. Upon receipt, the Client shall inspect the Products and report any readily observable non-conformities, shipping damage or shortage in writing to the carrier (copy to Cosmo) within ten (10) business days. Failing this, the Products shall be deemed accepted without reservation and all related claims shall be irrevocably waived.
3.3. Quality control. Within ten (10) business days of receipt, the Client shall conduct quality control at its own costs and risks to assess conformity with the approved Prototype. The Client acknowledges that Cosmo’s comparative analysis of the retained reference sample versus the Client’s sample, conducted using Cosmo’s standard analytical methods, shall be determinative of conformity in the absence of manifest error. Any analysis shall be conducted solely to verify conformity; use of such analysis to obtain information on Cosmo’s formula or Know-How is strictly prohibited.
3.4. Hidden defects. If the Client identifies a hidden defect in the Product, it shall notify Cosmo in writing within thirty (30) calendar days form the date of delivery. If the defect is confirmed, Cosmo shall replace the affected Product, subject to the following cumulative conditions: (i) the defect appears after the quality control period; (ii) the Product has been properly shipped and stored as instructed by Cosmo; and (iii) the Product has not been used by the Client in any manner whatsoever, including incorporation into a finished product. Consequently, no replacement obligation shall arise where the defect is attributable to misuse, abuse, improper maintenance or storage, or any alteration not authorized by Cosmo. In the event of a confirmed defect, Cosmo’s sole obligation shall be to replace the defective Products. Cosmo shall not be liable for any indirect losses, loss of profit, loss of production or any other consequential damages. Replacement of the Product is the Client’s exclusive and sole remedy.
3.5. Claims procedure. The Client must notify Cosmo in writing (i) of any non-conformity assessed within the period mentioned in Article 3.3; and/or (ii) of any hidden defect withing three (3) business days of its discovery; in both cases duly substantiated with documented evidence showing the Products defects or deviations from the Prototype and proof of proper storage and handling. A representative sample of the potentially non-compliant batch must be sent to Cosmo at the Client’s costs and risks to evaluate it under Cosmo standard analytical methods. Cosmo’s determination following its analysis shall be final and binding for the Client.
4. Financial Terms
4.1. Price. Prices are as stated in the Quotation, expressed in Dollars, excluding taxes, customs and duties. The full price shall be invoiced upon issuance of the Confirmation Order, unless otherwise agreed in writing. Any costs arising from a material change to the approved Prototype or to the standard packaging used by Cosmo shall fall outside the Quotation and, once expressly accepted by the Client, shall be invoiced separately.
Cosmo reserves the right to review and adjust its prices annually, or at any time in the event of a significant increase in the cost of raw materials, energy or transport, upon thirty (30) calendar days’ prior written notice to the Client.
4.2. Payment terms. Invoices are payable within thirty (30) calendar days from the date of issuance. The first order of any new Client must be paid in full in advance as a condition precedent to commencement of production.
Any delay in payment shall result in late payment penalties equal to 1.5% per month, calculated on the total outstanding amount (including taxes) from the due date until full payment, without prior notice or formal demand. In addition, a flat-rate recovery fee of Euros 40 (or applicable statutory equivalent) shall be automatically due per overdue invoice. Cosmo may refuse orders, require advance payment or suspend production if prior invoices remain unpaid.
5. Intellectual Property
Any reference to Cosmo’s intellectual property rights in these GTC shall be understood as referring to the intellectual property rights owned by this company and/or by any of the entities forming part of the corporate group to which it belongs, all of which are protected pursuant to the provisions set forth herein.
All intellectual property rights of Cosmo (including logos, trademarks, patents, formulas, Know-How, technologies, ingredients, manufacturing processes and methods, compositions, analytical data and any other technical or commercial information relation to the Products) are and shall remain the exclusive property of Cosmo. This Agreement does not grant the Client any rights or interest — whether by assignment, license, sub-license or otherwise — in Cosmo’s intellectual property, not even implicitly. Reverse engineering, analysis, or any attempt to determine the composition or manufacturing process of the Products is strictly prohibited. Any breach of this prohibition shall entitle Cosmo to immediately terminate the Agreement and seek injunctive relief and damages without prejudice to any other available remedies.
The Products are provided “as is”, without any warranty regarding possible third-party intellectual property rights. Cosmo has not conducted any investigation as to whether the sale or delivery of the Products may infringe third-party rights and shall not be held liable for any loss, claim or damage arising in this respect.
6. Confidentiality
Each Party shall treat as strictly confidential all information exchanged under this Agreement, whether written, oral or electronic, including technical, commercial and strategic data (“Confidential Information”). Confidential Information may not be disclosed to third parties without prior written consent and shall be used solely for the performance of this Agreement. This obligation does not apply to information already in the public domain, lawfully obtained from a third party, or already in the receiving Party’s possession without restriction. If disclosure is legally required, the receiving party shall notify the disclosing Party promptly. Confidential Information remains the property of the disclosing Party and must be returned or destroyed upon request or termination. This obligation shall survive the termination or expiry of the Agreement indefinitely.
7. Warranties, Indemnification & Limitation of Liability
Each Party warrants that it has all necessary rights and authorizations to enter into and perform this Agreement and that all information provided is accurate and complete.
Cosmo’s liability is limited to the conformity of the Products with the approved Prototype until their acceptance by the Client in accordance with section 3 above. Thus (i) Cosmo shall not be liable for any defect, deterioration or damage occurring after delivery or arising from improper storage, handling, processing or use by the Client; (ii) Cosmo shall not be liable for any indirect, financial, special, incidental or consequential damages, including loss of profit, loss of production, business interruption or reputational damage incurred by the Client or its customers with respect to the Products. If Cosmo is nevertheless held liable, its total liability shall be limited to the amount actually paid by the Client for the order. This limitation shall apply regardless of the legal basis of the claim (contract, tort, strict liability or otherwise) and shall not be increased by reason of any indemnification obligation. Any claim must be brought within twelve (12) months of the date the Client became aware of the cause of action.
The Client shall indemnify, defend and hold Cosmo harmless against all claims, losses, damages, costs and expenses (including reasonable legal fees) arising from: (a) breach of the Agreement by the Client; (b) the Client’s negligence or wrongful conduct; (c) shipping, storage, handling, modification, distribution or sale of the Products; (d) use of materials, specifications or instructions provided by the Client; or (e) any third-party claim alleging that the Client’s use of the Products infringes proprietary rights, as well as for any claims arising from the Client’s use of the Products, their incorporation into the Client’s finished products, and the manner in which such finished products are marketed, labeled, or presented by the Client.
Both Parties shall maintain all appropriate insurance required by applicable laws and as ordinary good business practice for their field of activity.
8. Force Majeure
Neither Party shall be liable for delays or failures in performance resulting from events beyond its reasonable control that could not have been foreseen or avoided (natural disasters, pandemics, acts of government, war, terrorism, civil unrest, labour disputes or energy/transport disruptions, etc.) and which make the performance of its obligations impossible or unreasonably difficult. The affected Party shall immediately notify the other Party, and both Parties shall take all reasonable measures to mitigate the consequences. If the force majeure event continues for more than thirty (30) calendar days, either Party may terminate the Agreement by registered letter with acknowledgment of receipt, without any liability or compensation being owed to the other Party as a result of such termination.
9. Termination
The legal grounds for termination of contracts shall apply, in particular in the event of any material breach by either Party that is not remedied within thirty (30) calendar days of written notice. Cosmo may terminate the Agreement with immediate effect in the event of (i) Client’s failure to pay for the Products; or (ii) any attempt by the Client to reverse-engineer, copy or misappropriate Cosmo’s intellectual Property rights. In the event of any ground for termination attributable to the Client, Cosmo reserves the right to retain the Products and any payments already received until all obligations under the GTC have been duly fulfilled.
10. Data Protection
The contact data of any Party’s representatives and employees processed by virtue of this Agreement, as well as any others that may be exchanged in the future, will be processed by the other Party to allow the development, compliance and control of the commercial relation arranged, whose basis for processing is compliance with the contractual relationship, and all data will be stored for as long as it is in force, and even subsequently, until any possible liabilities that may derive from it have lapsed. The personal data may be disclosed by the Parties to competent Public Administrations and Bodies for compliance with their respective legal obligations, in accordance with legislation in force, as well as, when necessary, to third entities involved in the management of the activities conducted.
Data subjects may request access to the personal data, their rectification, erasure, portability and processing restriction, as well as object to this, at the address of each party and/or file a claim before the competent Data Protection Agency. The Parties should convey the information contained in this paragraph to any individual involved in the commercial relation arranged, which entails the processing of its personal data.
11. Miscellaneous
No modification of the Agreement shall be enforceable unless formalized in a written amendment signed by both Parties. The invalidity of any provision shall not affect the validity of the remaining Agreement. Rights and obligations may not be assigned by the Client without Cosmo’s prior written consent. Cosmo may assign its rights and obligations under this Agreement to any entity within the group to which it belongs without prior consent. Cosmo reserves the right to update the GTC at any time; all orders will be subject to the GTC in force at the time of the Confirmation Order.
12. Governing Law & Jurisdiction
This Agreement shall be governed by American law, excluding its conflict of law rules. In the event of a dispute, the Parties shall endeavour to reach an amicable solution within thirty (30) calendar days of a registered letter or digitally signed email from either Party. Failing this, the dispute shall be submitted exclusively to the Courts of Miami, Florida, with express waiver of any other jurisdiction.