Terms of service

TERMS AND CONDITIONS OF PRODUCT PURCHASE

I. SCOPE

a. These Terms and Conditions shall apply to product/s (Product) supplied by Comer Mas, Inc. to its third-party buyers or customers (Customer) covered by an existing and valid sales invoice (Invoice) that will be paid through Payexpress, unless otherwise expressly agreed upon by parties, or if the agreement of the parties are embodied in a specific contract or purchase order that is inconsistent with the provisions of these Terms and Conditions.

b. Comer Mas, Inc. reserves the right to amend the provisions of these Terms and Conditions without notice to Customer.

II. ORDERS AND SPECIFICATIONS

a. Customer understands and agrees that the purchase of the Product shall be on a pre-order basis through CMI approved Customer Relations Assistants or Sales Representatives in the manner or mode acceptable to CMI (i.e., telephone call, e-mail, fax, etc.). No orders shall be binding unless accepted by CMI in writing by the issuance of the corresponding Invoice.

b. Unless otherwise approved by CMI, all orders shall comply with CMI’s approved format and content.

c. The specifications for the Product shall be indicated on the Invoice. Customer shall be responsible to completely indicate the specifications of the Product, which shall include information on the quantity, packing, and delivery instructions, among others. In this regard, CMI shall provide a list of information that will be required from Customer to ensure that the specifications indicated on the Invoice are complete and accurate.

d. CMI reserves the right to modify the specifications of the Product by giving reasonable and timely notice to Customer at least fifteen (15) calendar days from the intended delivery date. Should Customer disagree with such changes, Customer may terminate or cancel the Purchase Order in writing within five (5) calendar days from the time Customer receives notice from CMI and within ten calendar (10) days before intended delivery date. Failure of Customer to terminate or cancel within the said period shall be understood as acceptance of the modifications that will allow CMI to proceed with the delivery of the Product.

e. All Invoices are binding and irrevocable unless CMI accepts the cancellation of the order and Invoice upon the written request of Customer.

III. PRICING AND PAYMENT

a. The purchase price shall be quoted before or upon order of Customer. Customer shall pay the amount indicated on the Invoice which are inclusive of applicable value added tax, delivery charge and other costs.

b. In the event that any tax or amount in respect of tax is required by law to be withheld or deducted from any payment due, Customer shall pay the amount thereof to the relevant authority within applicable time limits. As soon as reasonably practicable thereafter, Customer shall provide to CMI  an original or a copy of the corresponding original tax receipt, certified by the appropriate tax authorities or, where such receipt is not issued under applicable law and practice, other evidence reasonably satisfactory to CMI that payment has been duly made to the relevant authority.

c. Customer shall settle the purchase price in accordance with the time or period indicated on the Invoice. Payments shall not be deemed made until cleared and credited to CMI’s bank account.

d. The purchase price contained on the Customer’s Purchase Order may be subject to adjustment by CMI for any cause upon agreement of CMI and Customer. Should Customer disagree with such adjusted price, Customer may terminate or cancel the Purchase Order for Product upon thirty (30) calendar day’s prior written notice to CMI.

e. Any unpaid purchase price shall incur an eighteen percent (18%) interest per annum, without prejudice to CMI’s right to avail of other remedies provided herein and granted by law or equity.

f. If applicable, the granting of credit shall be based on the sole discretion and approval of CMI.

IV. DELIVERY

a. Delivery will be based on CMI’s delivery schedule per area. As such, CMI will assign a delivery date for the Product to be indicated on the Invoice. Customer understands that CMI cannot commit to Customer’s preferred time of delivery unless otherwise agreed upon.

b. CMI shall make every effort to deliver the Product to Customer in compliance with the terms and conditions provided on the Invoice. If delay is expected, CMI shall contact Customer immediately to reschedule the delivery.

c. CMI shall not be liable for any failure or delay in delivery resulting from circumstances/events beyond CMI’s control such as acts of God, force majeure or if the failure or delay is caused by the voluntary or negligent act of Customer.

d. Notwithstanding the foregoing, the Product may also be picked-up by Customer at CMI’s warehouse or any other location agreed upon and indicated on the Invoice.

e. If Customer refuses to accept the delivery or fails to pick up the Product, corresponding storage fees shall be charged to Customer amounting to Five Hundred Pesos (PhP500.00) per day or the actual cost of storage if the Product, whichever is higher. Additional fee for the re-delivery of the Product will likewise be shouldered by Customer.

f. CMI may deliver the Product, or a portion thereof, on an earlier date upon prior notice to Customer.

g. The delivery fee will be for the account of Customer and shall be exclusive of the purchase price of the Product, which shall be separately identified on the Invoice.

h. CMI shall pack the Product in a suitable container and/or racks and, if applicable, based on the pre-agreed packing specifications stated on the Invoice.

V. INSPECTION OF PRODUCT AND TRANSFER OF TITLE AND RISK

a. The title to, and the risk of the delivery of the Product shall pass from CMI to Customer when the Product is delivered to and accepted by Customer or its/his/her duly authorized representative. Once delivered, CMI shall not be responsible for storage, any loss or damage due to the conditions of the delivery location or any act, default or omission of Customer or its representatives.

b. Upon delivery of the Product, Customer shall immediately inspect the quantity and quality of the Product. Noting the perishable nature of the Product, Customer shall notifyCMI in writing within forty eight (48) hours from delivery if the Product is short in quantity, defective or not compliant with agreed specifications.

c. If the Product is short in quantity without fault on the part of Customer, CMI shall deliver the remaining Product as soon as practicable upon agreement with Customer without added delivery cost.

d. In the case of defective goods, a Product that is presentable as to its physical appearance and in good condition (packaging, appearance, contents are soft and usable) is deemed Good Stock and shall not be eligible for returns. A Product that is not deemed a Good Stock by CMI’s Quality Control Group, is considered as Bad Stock and shall be eligible for return or replacement as may be agreed upon by the parties. In case of Bad Stock, Customer shall cause the return of the same to CMI, and CMI shall bear all transportation costs, risk of loss and the value of the returned or replaced Product.

e. In case a Product is not compliant with the specifications agreed upon, Customer shall cause the return of the same to CMI, and CMI shall bear all transportation cost and risk of loss for the replacement of the same.

VI. WARRANTIES AND REPRESENTATIONS

a. CMI and Customer represent and warrant that:

i. Each party has full power and authority and has taken all actions necessary to fulfill his/her/its obligations and consummate the actions contemplated herein;

ii. Each is not a party to and is not aware of any written agreement which govern or may reasonably be expected to adversely affect these Terms and Conditions or any other agreements in connection herewith; and

iii. All documents or agreements to be executed pursuant hereto have been duly and validly authorized, executed and delivered by each of the parties and will be legal, valid, binding and enforceable against each of the parties in accordance with their terms.

b. CMI disclaims all other warranties, express or implied, with respect to the Product including, without limitation, its fitness for a particular purpose or for the results to be derived from the use of the Product.

VII. INDEMNIFICATION

a. Customer shall indemnify, defend and hold CMI free and harmless from any liability, loss, claim, damage or costs, including attorney’s fees, and expenses that may be asserted, or arise by reason of: (a) Customer’s failure or alleged failure to comply, in whole or in part, with any warranty or obligation assumed by Customer pursuant hereto; (b) Customer’s breach or alleged breach of any contract entered into between Customer and a third party by reason of these Terms and Conditions; or (c) any other acts or omissions of Customer.

b. Under no circumstances will CMI be liable to Customer for indirect or consequential damages or losses even if such damage or loss is foreseeable.

VIII. CANCELLATION OF ORDERS

a. In case of breach by Customer or non-compliance with any obligation provided herein, CMI shall notify Customer of such breach or non-compliance and demand that the same be cured within five (5) calendar days from written notice. Should Customer fail to cure the breach or non-compliance within the 5-day period, CMI may immediately cancel the order upon written notice of termination to the Customer and withhold or suspend Customer’s unexecuted or future orders, without prejudice to CMI’s right to avail of other legal and equitable remedies.

b. Notwithstanding the foregoing, the parties may cancel any order prior to delivery upon mutual agreement.

c. The cancellation of any order shall neither affect the right nor release the parties from any obligations or liabilities accrued in favor of the other prior to the cancellation.

IX. TERM

These Terms and Conditions is coterminous with the effectivity or completion of the individual Invoice or order.

X. FORCE MAJEURE

a. No party shall be liable for any failure or delay in the fulfillment of either party’s obligations if the failure or delay is due to acts of God, force majeure or any condition beyond the control of a party. In this event, the obligation shall be suspended while the condition exists; provided, the affected party shall give prompt notice to the other of the nature of the condition and its estimated duration, unless the circumstance is otherwise evident or made known to the general public. The affected party shall automatically resume performance of its obligations after the condition ends.

b. As used herein, “force majeure” refers to causes beyond the reasonable control of the parties, including, but not limited to:

i. Acts of God;

ii. Fire, explosion, breakdown of plant, strike, lock-out, labor dispute, casualty or accident, lack or failure of transportation facilities, epidemics, cyclone, flood, drought, lack of or failure of sources of supply, lack of labor force, raw materials, power/utilities, or lack of supplies;

iii. War, revolution, civil commotion, acts of public enemies, blockage or embargo;

iv. Any law, order, proclamation, regulation, ordinance, demand or requirement of any government or of any subdivision, authority or representative of any such government; and

v. Any other cause whatsoever, whether similar or dissimilar to those enumerated above, which are beyond the control of such party.

XI. CONFIDENTIALITY

CMI and Customer agree to keep confidential all relevant information, discussions and terms relating to or arising out of these Terms and Conditions and purchase of the Product. Each party shall seek the written consent of the other before any such information, discussions or terms can be released or disclosed to a third party, except such information already of public knowledge at the time of disclosure or as may be required by law or any government authority or regulatory body. The obligations hereunder shall remain effective and in full force for the term of these Terms and Conditions and shall continue to survive after the expiration thereof.

XII. DATA PROTECTION

a. CMI has implemented reasonable and appropriate organizational, physical and technical measures intended for the protection of Customer’s personal and sensitive personal information against any accidental or unlawful destruction, alteration and disclosure, as well as against any other unlawful processing.

b. Any processing of Customer’s personal information shall be made for a valid, legal and reasonable purpose, taking into consideration appropriate security measures to ensure the confidentiality and/or integrity of the personal information of Customer. In this regard, any and all personal information related to Customer which may come into CMI’s possession and/or control shall be solely used for the completion of the sale of the Product.

c. CMI shall only retain the information of Customer until the declared, specific and legitimate purpose has been achieved or the processing relevant to the purpose has been terminated. However, CMI reserves the right to retain the information when necessary to establish, exercise or defend legal claims, for legitimate business purposes, or when provided by law, which must be in accordance with standards followed by the applicable industry or approved by the appropriate government agency.

XIII. MISCELLANEOUS PROVISIONS

a. These Terms and Conditions shall be fully binding upon, inure to the benefit of, and be enforceable by the parties hereto, and their respective successors and permitted assigns.

b. Neither party may assign its rights, interest or benefit hereto without the prior written consent of the other party.

c. Any right or remedy conferred herein upon either party shall not be exclusive of any other right or remedy of such party, whether hereunder or provided or permitted to such party at law or in equity, but each right or remedy shall be cumulative of every other right or remedy available to such party.

d. These Terms and Conditions, and all acts and transactions pursuant hereto and the rights and obligations of the parties herein shall be governed, construed and interpreted in accordance with the laws of the Republic of the Philippines, without giving effect to principles of conflicts of law. All actions or proceedings arising out of or in connection with these Terms and Conditions shall be brought exclusively before the proper courts of Pasig City.

e. Should CMI be compelled to seek judicial relief against Customer, CMI shall, in addition to any other damages, be entitled to an amount equivalent to Twenty-Five Percent (25%) of the amount claimed in the complaint, which shall in no case be less than Fifty Thousand Pesos (P50,000.00) as attorney’s fees.

f. In the event that any term or condition of these Terms and Conditions is in conflict with or is otherwise unenforceable under any law, rule or regulation, such term or condition shall be deemed stricken of, but such invalidity or unenforceability shall not invalidate or render unenforceable the remainder hereof.

g. The failure of either party to insist upon the strict performance of any of the terms and conditions herein shall not be deemed a relinquishment or waiver of any subsequent breach or default of the terms and conditions and covenants hereof, and which terms and conditions shall continue to be in full force and effect.

h. No waiver by the either party of any of its/his/her rights under these Terms and Conditions shall be deemed to have been made unless expressed in writing and signed by such party.

XIV. NOTICES

Any notice required to be given hereto will be given in writing and delivered through any of the following means:

a. In person;
b. By confirmed facsimile;
c. By commercial overnight carrier, with written verification of receipt;
d. By first-class post, return receipt requested, postage and charges prepaid; or
e. Via email.

Notices to CMI shall be sent to:

COMER MAS, INC.

161 F. Mariano Avenue, Brgy. Dela Paz

1600 Pasig City, Philippines
Tel. No.: 85240006
customerservice@pacificbay.com.ph

Notices to Customer shall be sent through the information provided on the Invoice.

It is understood that Customer hereby agrees and accepts to be bound by and honor these Terms and Conditions upon placing its/his/her order/s of the Product.