These TERMS AND CONDITIONS (the “Terms”) are the contract terms by which Monson Paper, LLC (“Monson”) sell products to its customer (sometimes “You”). By accepting delivery of goods from Monson You agree to be bound to the contract terms and conditions described herein and that the sale of goods by Monson to You and Your payment for the same shall be governed by these Terms. You are hereby notified of Monson’s objection to additional terms not stated herein.
1. Payment: Payment shall be due in full, together with all taxes, shipping, insurance, and all other amounts due on or before the date specified on the Invoice, or on or before the day before the date shipped in the case of “COD” customers. Payment is understood to be considered made (for the purposes of these Terms) no earlier than the date that good funds clear Monson’s accounts. In the event that any payment is late, then there shall be due to Monson both the amount of the Payment and interest at the lesser of twelve percent per annum or the maximum rate allowed by law from the date the payment is due to the date the payment is made. All payments received shall be applied first to costs of collection (including attorney’s fees) then to interest and then to the amount due. Monson shall be entitled to apply payments to such outstanding invoices as it may determine in its’ sole discretion. In the event that Payment is not made timely then, in addition to interest, costs and other damages to which Monson might be entitled, Monson shall be further entitled to recover from You the amount if its reasonable attorney’s fees incurred in connection with such late payment.
2. Goods. You agree to accept the goods AS IS, WITH ALL FAULTS AND WITH ALL WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE DISCLAIMED. You shall promptly inspect all goods on receipt. No rejection of any goods shall be effective unless received by Monson before seven calendar days after shipment. You waive all consequential damages, punitive damages, enhanced compensatory damages, and damages in the nature of lost profits. Damages from any claimed breach by Monson shall be strictly limited to the return of the purchase price. All warranties arising from any course of dealing or usage of the trade are disclaimed. You affirm that You are not relying on Monson’s skill or judgment to select or furnish goods suitable for Your purposes.
3. Title. You agree that title to the goods shall pass only upon irrevocable payment in full. Until payment in full, You shall hold the goods and their proceeds in trust for Monson.
4. Security Interest. To secure the payment of all amounts due Monson (whenever or however arising) You grant to Monson a security interest in and to all goods sold to You by Monson, all products, proceeds or derivatives thereof, and all other inventory and all proceeds thereof. By signing or adopting the purchase order or by accepting the invoice You authenticate these Terms and agree that You are intending to authenticate these terms. By authenticating these terms You authorize Monson to file a UCC-1 financing statement describing the goods in which You have granted Monson a security interest.
5. Delivery. Monson may cause the goods to be shipped in various lots and upon shipment of each lot Monson may invoice the allocable portion of the price. All goods shall be delivered at the Monson loading docks, each sale being F.O.B. Seller’s dock. All risk of loss shall pass to You at the moment the goods are made available on the Seller’s loading dock to the carrier for delivery. Delivery shall be at the time and date described in the purchase order or invoice or within a reasonable time thereafter. Unless expressly otherwise stated, time is not of the essence. Unless otherwise agreed in writing the cost of shipment and all insurance during shipment shall be paid by You.
6. Courts and Law. These Terms and the contract between You and Monson shall be governed and construed in accordance with the internal substantive law of the Commonwealth of Massachusetts. Any action by You against Monson shall be brought only in the state or federal courts of appropriate jurisdiction in Hampden County, Commonwealth of Massachusetts. You consent to the personal jurisdiction of the state or federal courts located in Hampden County, Massachusetts. Monson reserves the right to commence an action to enforce these Terms in any court having jurisdiction over You or Your assets.
7. Representations. You represent to Monson that You are solvent both in the sense that the fair value of Your assets is greater than the sum of Your liabilities and in the sense that You are capable of paying Your debts as they come due. You represent that You have a reasonable level of capital for the business that You conduct. You represent that no voluntary or involuntary petition in bankruptcy is contemplated by or against You to the best of Your knowledge. You represent that You have a bona fide intent to pay all amounts due to Monson as and when due.
