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Terms & Conditions

These terms and conditions shall apply to all sales F.P. Installation (Pty) Ltd t/a F.P. Engineering, known as “F.P. Engineering”, to the Client , who shall be referred to as “the Buyer”. All references in these terms and conditions of sale to "products" includes all parts, pieces, assemblies and other items which are manufactured, fabricated, assembled, supplied or machined by F.P. Engineering whether the raw materials manufactured or machined are owned by F.P. Engineering or by the Buyer.

These terms and conditions also describe F.P. Engineering responsibility as to the Buyer’s property in F.P. Engineering possession.

1. Offer, Governing Provisions.
These terms and conditions apply to any contract for the sale of products from F.P. Engineering to The Buyer to which these terms and conditions have been attached or into which these terms and conditions have been incorporated by reference whether in written or electronic form,. F.P. ENGINEERING DOES NOT ACCEPT ANY OFFER MADE BY THE BUYER. NO ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL BE BINDING UPON F.P. ENGINEERING NOR CAN THE BUYER’S ACCEPTANCE LIMIT OR ALTER F.P. ENGINEERING TERMS AND CONDITIONS, UNLESS SPECIFICALLY AGREED TO IN WRITING SIGNED BY DULY AUTHORIZED PERSONNEL OF F.P. ENGINEERING. F.P. ENGINEERING HEREBY REJECTS ANY SUCH ADDITIONAL OR DIFFERENT PROVISIONS CONTAINED IN ANY PURCHASE ORDER, REQUEST FOR QUOTE, ACKNOWLEDGEMENT, CONFIRMATION OR OTHER COMMUNICATION FROM THE BUYER.

2. Price.
Quotations are open for acceptance thirty (30) days from issuance. After thirty (30) days, prices and terms are subject to change without notice unless otherwise specified. F.P. Engineering reserves the right to re-quote based on changes in material pricing or surcharges for raw materials, castings, or purchased components from those in effect at the time of the quote.

F.P. Engineering reserves the right, at its option, to reject any orders or to make an extra charge for the manufacture or machining any part below agreed standards. In the event the results of the manufacture or machining are unsatisfactory due to imperfections in materials, usages for which the plating or other finishing operation was not reasonably designed, or similar variables over which F.P. Engineering has no control, The Buyer agrees to pay the contracted amount for the finishing operation performed. For special or experimental manufacturing or machining, F.P. Engineering charges are not contingent upon the success of the work or the benefit derived there from by the Buyer.

3. Payment Terms.
Net THIRTY (30) DAYS from the date of invoice on approved credit, unless otherwise specified in writing. If during the period of performance of an order, the financial condition of the Buyer shall no longer justify the payment terms specified, or if The Buyer shall fail to make any payments in accordance with F.P. Engineering terms, F.P. Engineering may require full or partial payments in advance before proceeding with the order. Late payments accrue a late charge of 2½ % per month, but shall not exceed the maximum rate allowed by law.

Where a payment is to be made with the placement of an order, this payment will be made (7) DAYS from the date of invoice on approved credit, unless otherwise specified in writing.

Should the Buyer shall fail to make any payments in accordance with F.P. Engineering terms, the project will only start from date of payment received, all time lost due to late payment will be added to the delivery on the said project or, late payments accrue a late charge of 1½ % per month, but shall not exceed the maximum rate allowed by law.

The Buyer shall reimburse F.P. Engineering for all costs incurred in collection (including reasonable attorneys’ fees). Title to the products shall remain in F.P. Engineering until the purchase price due hereunder is paid in full. If the Buyer fails or refuses to pay any part of the price when due, then title to the products will not pass to the Buyer, and F.P. Engineering can repossess itself of the products.

The Buyer hereby grants to F.P. Engineering a priority lien, purchase money security interest, and/or chattel mortgage in the products, in any accounts receivable or cash from the resale thereof, and in all of the Buyer’s materials or other property in F.P. Engineering possession until full payment is made by the Buyer to F.P. Engineering for the price of all products purchased, as well as any interest, finance charge, late fees, and F.P. Engineering costs of collection, including reasonable attorneys’ fees. On request of F.P. Engineering, the Buyer agrees to file any financing statements or other appropriate documents with any appropriate government authority to assure the validity, priority and enforceability of F.P. Engineering lien. Furthermore, F.P. Engineering may file any such financing statements to perfect the security interest herein and is hereby appointed the Buyer’s attorney-in-fact for purposes of making any such filing. This section is not meant to alter the parties’ agreement that title to the products remains with F.P. Engineering until the purchase price is paid in full, but rather, is meant to give F.P. Engineering a security interest in the products in the event the Buyer is ever found to have received title to the products by operation of law or equity contrary to the terms hereof.

4. Taxes and Other Charges.
All taxes (including any manufacturer's tax, retailer's occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever) imposed by any governmental authority on or measured by the transaction between F.P. Engineering and the Buyer shall be paid by the Buyer in addition to the price quoted or invoiced.

The price quoted or invoiced includes only those taxes separately stated on the face hereof. In the event F.P. Engineering is required to pay any liability for such tax, the Buyer shall indemnify F.P. Engineering and hold F.P. Engineering harmless from and against all liability relating to such tax. This indemnification and hold harmless shall also apply to any liability resulting from any exemption certificate or other indication of exempt status provided by the Buyer not being acceptable to the authority imposing the same.

5. Warranties.
F.P. Engineering warrants that its products have been manufactured in accordance with Good Engineering practice (G.E.P) and the specifications and or Codes supplied by the Buyer in writing, if any, subject to any changes agreed to between F.P. Engineering and the Buyer.

If the Buyer specifies methods and procedures to be followed, F.P. Engineering will assume no responsibility for the correctness of such methods and procedures or the results when they are followed. F.P. Engineering otherwise warrants products to be free from defects in materials and workmanship for a period of ninety (90) days from date of delivery, provided they have not been subjected to misuse, structural or chemical alteration, abuse, unauthorized repair, processing, or assembly. If, within such period, any such products shall be proven to F.P. Engineering satisfaction to be defective, such products shall be repaired, refinished, or replaced, or their price refunded, at F.P. Engineering option.

F.P. Engineering obligation for non-performance, defective products, or any damage caused by its products or their use, and the Buyer's exclusive remedy therefore, shall be limited to such repair, refinishing, replacement or refund and shall be conditioned upon:

(i) F.P. Engineering receiving written notice, together with a demand for such repair, replacement or refund, within ninety (90) days after the date of delivery of such products; and

(ii) the Buyer’s return of any product or products for F.P. Engineering inspection.

No claim shall be allowed until such inspection is performed by us. The exclusive remedy provided herein shall not be deemed to have failed its essential purpose under any circumstances so long as F.P. Engineering is willing and able to repair or replace defective products or refund the purchase price within the time specified.

6. Disclaimers of Warranty.
THE FOREGOING WARRANTIES PROVIDED IN SECTION 5 HEREOF ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. F.P. Engineering does not warrant its products to be suited for any particular purpose.

Any suggestions made by F.P. Engineering concerning the product, its use, its performance, its production capabilities, quality requirements and/or suggestions with respect to design, engineering, use or the like, are to be construed as suggestions only and any and all specified intended uses should be confirmed by The Buyer's independent testing. Any description of the product given to the Buyer by F.P. Engineering is for the sole purpose of identifying it, is not part of the basis of the bargain, and does not constitute a warranty that the product shall conform to that description.

The use of any sample in connection with the sale is for illustrative purposes only, is not part of the basis of the bargain and is not to be construed as a warranty that the product will conform to that sample. F.P. Engineering assumes no responsibility for defective machining on materials or merchandise previously machined or finished by others. None of F.P. Engineering agents, employees, or representatives have any authority to bind F.P. Engineering to any affirmation, representation or warranty other than those stated herein.

7. Partial Shipments, Inspection, Claims and Delays.
Deliveries made by F.P. Engineering within ten (10) days of the time specified shall be deemed in full compliance with the contract. F.P. Engineering reserves the right to make delivery in instalments, unless otherwise expressly stipulated herein. All such instalments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any instalment shall not relieve The Buyer of its obligations to accept remaining deliveries.

Except as may otherwise be expressly provided, the Buyer shall be responsible to inspect the products delivered and to notify F.P. Engineering in writing within three (3) days after receipt of shipment of any complaint that relates to such products (including without limitation claims for shortages), and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by the Buyer.

Claims for loss or damage to products in transit shall be made to the carrier and not to F.P. Engineering. No claim for shortage in weight or count will be allowed unless made within the three (3) days after receipt of shipment of products by the Buyer or the Buyer’s consignee to whom it was delivered. F.P. Engineering will, in no event, be responsible for weight counts or other inspection functions for merchandise received from third parties on behalf of The Buyer.

F.P. Engineering shall not be liable for any damage as a result of any delay due to any cause beyond F.P. Engineering reasonable control, including, without limitation, any act of God, act of The Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slow-down, war, riot, delay in transportation, or inability to obtain necessary labour, materials, or manufacturing facilities.

8. Delivery, Risk of Loss and Transportation Costs.
All products are sold ex- works or F.O.B. (provided it is in the loading capacity of our overhead cranes) from F.P. Engineering work shop in Durban, South Africa, unless otherwise specifically agreed in a writing signed by F.P. Engineering.

Delivery of products to a carrier at F.P. Engineering workshop or other loading point shall constitute delivery to the Buyer; and regardless of shipping terms or freight payment, all risk of loss or damage in transit shall be borne by the Buyer (even if shipped in trucks or vehicles owned by F.P. Engineering). Method and route of shipment shall be at the discretion of F.P. Engineering unless the Buyer shall specify otherwise; any additional expenses of the method or route of shipment specified by the Buyer shall be borne entirely by the Buyer, unless specifically agreed otherwise in a writing signed by F.P. Engineering. F.P. Engineering assumes no liability for any loss or damage to products or material while in transit.

F.P. Engineering shall not, under any circumstances, be considered as an insurer of the Buyer’s material or other property in its possession, and shall not be liable, regardless of cause, for loss by fire, explosion, theft, pilferage, vandalism, casualty, acts of God or other cause outside of F.P. Engineering reasonable control. Unless agreed to in a writing signed by F.P. Engineering, special tools, racks, and fixtures required for the performance of the work herein described which have been designed and/or built by F.P. Engineering shall be and remain property of F.P. Engineering, whether or not the Buyer is charged with time and/or material in connection therewith. During storage and transportation of the Buyer’s material or other property, the Buyer’s containers used for delivery to F.P. Engineering may be used for reshipment and any damage resulting from the use of such containers shall be at the Buyer’s risk. Should the Buyer desire other packaging or containers, F.P. Engineering will charge for material and handling and will provide such service upon receipt of a written order. Additional charges may be incurred by the Buyer for repackaging goods to other specifications.

9. Cancellation and Return.
No order accepted by F.P. Engineering may be cancelled or altered by the Buyer except upon terms and conditions acceptable to F.P. Engineering as evidenced by written consent signed by duly authorized personnel of F.P. Engineering. In the event of such approved cancellation by the Buyer, F.P. Engineering shall be entitled to payment for all finished and in-process products, as well as any costs incurred in the preparation of the Buyer's order to the date of cancellation, including, without limitation, costs of tooling and engineering expenses incurred in connection with such order and any lost profit.

Products may be returned to F.P. Engineering only with F.P. Engineering written permission, signed by duly authorized personnel of F.P. Engineering, having been obtained by the Buyer, in advance. Products may not be returned unless they are in marketable condition. Products manufactured to special order are not subject to return. Returned products must be securely packaged to reach F.P. Engineering without damage; and any cost incurred by F.P. Engineering to put products in marketable condition will be charged to the Buyer.

10. Disclaimer of Consequential Damages and Other Liability; the Buyer's Indemnity.
F.P. Engineering liability with respect to breaches of warranties shall be limited as provided in Sections 5 and 6 hereof. With respect to other breaches of this contract, F.P. Engineering liability shall in no event exceed the contract price.

F.P. ENGINEERING SHALL NOT BE SUBJECT TO AND DISCLAIMS:

(a) ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY;

(b) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS OR ARISING OUT OF OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY F.P. ENGINEERING, OR ANY UNDERTAKING, ACTS OR OMISSIONS RELATING THERETO; WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, F.P. ENGINEERING SPECIFICALLY DISCLAIMS LIABILITY FOR THE TORTS OF NEGLIGENCE, MISREPRESENTATION, AND STRICT LIABILITY; AND

(c) ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER.

Without limiting the generality of the foregoing, F.P. Engineering specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, DAMAGES FOR LOST PROFITS OR REVENUES, loss of use of products or any associated equipment, cost of capital, facilities or services, down time, cost of recalls, shut down or slow down costs, or for any other types of economic loss. All of the limitations and disclaimers contained in this section 10 and in the rest of this contract shall apply to claims of The Buyer's customers or any third party

The Buyer shall indemnify F.P. Engineering against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defending any action) which F.P. Engineering may incur as a result of any claim by The Buyer or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely by F.P. Engineering negligence.

F.P. ENGINEERING PRICES ARE BASED ON THE POLICIES STATED HEREIN WHICH LIMIT ITS LIABILITY. IF THE BUYER DESIRES FOR F.P. ENGINEERING TO PROVIDE A WARRANTY GREATER THAN THAT WHICH IS STATED ABOVE, THEN F.P. ENGINEERING WILL ADJUST UPWARDS THE PRICE FOR THE PRODUCTS DESCRIBED HEREIN OR ON THE FACE HEREOF TO REFLECT THE ADDITIONAL EXPENSE TO F.P. ENGINEERING WHICH SUCH A WARRANTY OBLIGATION COULD CAUSE. THE BUYER ACKNOWLEDGES THAT F.P. ENGINEERING PRICE IS LOWER THAN IT OTHERWISE WOULD BE BECAUSE OF F.P. ENGINEERING DISCLAIMER OF TORT LIABILITY, AND SPECIFICALLY BECAUSE OF F.P. ENGINEERING DISCLAIMER OF THE TORTS OF NEGLIGENCE, MISREPRESENTATION, AND STRICT LIABILITY. THE BUYER FURTHER ACKNOWLEDGES THAT THE LOWER CONTRACT PRICE GIVEN IN EXCHANGE FOR SUCH DISCLAIMERS FORMS PART OF THE BASIS OF THIS BARGAIN.

11. Patents, Trademarks and Copyrights.
The Buyer assumes all liability for patent, trademark and copyright infringements when products are made to the Buyer's specifications.

12. Solvency.
The Buyer hereby represents and warrants to F.P. Engineering that the Buyer is solvent as of the date of this writing and will remain solvent at the time of delivery. In the event the Buyer is not solvent at the time of delivery, the product shall still be paid for or recovered by F.P. Engineering.

The Buyer agrees to provide F.P. Engineering with immediate written notice of such insolvency by facsimile to F.P. Engineering at 031 5692534. Furthermore, in the event the Buyer is not solvent at the time of delivery, this document shall serve as notice of F.P. Engineering intent to reclaim all products delivered hereunder and shall create a security interest in all such products.

13. Mandatory Arbitration.
The mandatory arbitration provisions of these terms and conditions shall be liberally construed so as to require the arbitration of all claims and disputes of every kind and nature, whether arising out of contract, tort, statute, common law or any other theories of liability and/or recovery in law and/or equity.

Without in any way limiting the above expressed intent, all “Disputed Claims” shall be resolved by mandatory arbitration and shall include, but not be limited to: any differences, claims, matters in dispute, or controversies of every kind or nature as to the existence, construction, validity, interpretation, meaning, performance, non-performance, enforcement, operation, breach, continuance, termination, misrepresentations (both in its formation or its execution), compliance with State or Local statutes of South Africa, ordinances, or regulations and any other theories of liability and/or recovery in law and/or equity, arising from or related, either directly or indirectly, to these terms and conditions, the contract of which they are a part, or the matters discussed herein.

All Disputed Claims shall be submitted by the parties to arbitration in accordance with this Agreement

In the event of arbitration, each party shall select an arbitrator within thirty (30) days of submission of any Disputed Claims to arbitration. If an arbitrator timely selected by a party is unable, for any reason, to serve until the making of a decision or an award, that party may name a successor arbitrator. If either party fails to designate an arbitrator within the thirty (30) day period, that party's right to name an arbitrator (or any successor arbitrator) is forfeited, and any arbitrator timely named shall select a second arbitrator. The first two arbitrators shall then [within thirty (30) days of the selection of the last of them] jointly select a third arbitrator, the three arbitrators of which shall constitute the “Arbitration Panel”. If the two arbitrators to be selected by the parties are unable to agree upon the selection of a third arbitrator, the third arbitrator shall be supplied by Commercial Court of Durban, South Africa.

Unless all parties agree otherwise, any arbitration hearings shall be held in Durban area. Each party shall reach an agreement with the arbitrator named by that party on the compensation to be paid to that arbitrator and shall disclose that agreement to the other party and the other arbitrator. The Arbitration Panel shall render its final decision within three (3) months of the selection of the Arbitration Panel.

In the event a party forfeits its right to select an arbitrator, then the second arbitrator shall be paid by the forfeiting party upon the same terms as the non-forfeiting party compensates its appointed arbitrator. The parties shall each pay one-half (1/2) of the fees and expenses of the third arbitrator as billed by that arbitrator to the parties.

Notwithstanding any other provision to the contrary, the parties agree and consent to the taking of depositions and the use of discovery in accordance with the National Rules of Civil Procedure. Furthermore, an aggrieved party prior to the naming of the Arbitration Panel as provided for in this Agreement, may petition the Commercial Court of Durban, South Africa for such temporary equitable relief as the court may determine is appropriate under the circumstances to maintain the status quo until the appointment of the Arbitration Panel as provided for herein.

After submission of the Disputed Claims to arbitration, but not less than ten (10) business days prior to commencement of the arbitration proceeding in which the Arbitration Panel will finally and fully resolve the Disputed Claims, each party shall provide the other party with a final confidential written settlement offer which shall not be disclosed to the arbitrators prior to the arbitration proceeding.

If no settlement is reached, the “Prevailing Party”, as defined below, shall be entitled to reimbursement of its reasonable legal fees and expenses and its share of all fees and expenses paid to the arbitrators as part of its final award. In addition to the resolution of the Disputed Claims the Arbitration Panel shall also determine which of the parties, if any, shall be deemed the “Prevailing Party”. A party shall be deemed the “Prevailing Party” only if the award rendered by the arbitrators is more favourable to the Prevailing Party then the Prevailing Party’s final written settlement offer to the other party, which shall only be disclosed to the arbitrators after they have reached their final decision with respect to the Disputed Claims. The Arbitration Panel may also determine that neither party is a Prevailing Party for purposes of the standard set forth in this subparagraph

The arbitrators shall be prohibited from awarding punitive damages even if a party would have otherwise been entitled to recover such damages under State or Local statutes, ordinances or regulations absent this Agreement. The arbitrators shall prepare detailed findings of fact and conclusions of law when rendering their decision.

14. Severability.
Each provision of the agreement shall be considered severable and if for any reason any provision or provisions hereof are determined to be invalid and contrary to law, to the extent permitted by law, such invalidity shall not impair the operation of or affect those portions of this agreement which are valid.

15. Final Agreement.
This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions of their agreement. Any subsequent modification or amendment to it may be made only in writing signed by both parties hereto. This writing and these terms and conditions shall be governed by and construed according to the internal laws of South Africa & South African Laws.