EXCELLION GROUP (PTY) LTD
Effective Date: 01 September 2024
Physical Address: 54 Webb Street, Northmead, Benoni, Gauteng, South Africa, 1501
Registration Number: 2024/491600/07
Contact: marius@excellion.co.za | +27 71 777 7072
1. INTERPRETATION AND DEFINITIONS
1.1 In these Terms and Conditions, unless the context indicates otherwise:
“Excellion” means Excellion Group (Pty) Ltd, its directors, employees, contractors, and authorised representatives.
“Client” means any person, company, trust, body corporate, or legal entity that places an order or engages Excellion’s services.
“Order” means any quotation accepted, purchase order issued, or agreement entered into between the Client and Excellion.
“CPA” means the Consumer Protection Act 68 of 2008, as amended.
“Working Day” means any day other than Saturday, Sunday, or a public holiday recognised in the Republic of South Africa.
“Equipment” means all goods, products, materials, hardware, or software supplied by Excellion.
1.2 These Terms and Conditions constitute the entire agreement between Excellion and the Client, unless expressly varied in writing signed by a director of Excellion.
2. APPLICATION OF THE CONSUMER PROTECTION ACT
2.1 Excellion acknowledges and respects the rights of Consumers as defined in the CPA. Nothing in these Terms and Conditions is intended to negate, limit, or circumvent any rights afforded to Consumers under the CPA.
2.2 Where the Client is a Consumer as defined in the CPA (i.e., a natural person or juristic person with an annual turnover/asset value below the threshold prescribed by the Minister), the following provisions shall apply: - The Client retains all rights under Sections 55 (Quality and Safety), 56 (Implied Warranty), and 61 (Liability for Defective Goods) of the CPA. - Any provision in these Terms that conflicts with the CPA shall be read down to the extent necessary to comply with the CPA, and the remainder of these Terms shall remain in full force and effect.
2.3 Where the Client is not a Consumer under the CPA (e.g., a large juristic person, corporate entity, or government body), the parties agree that these Terms represent a fair and reasonable allocation of risk in a commercial transaction.
3. PAYMENT TERMS
3.1 Excellion does not provide credit. All invoices are strictly Cash on Delivery (COD).
3.2 Any accepted quotation requires an 80% deposit before work commences or goods are ordered. The order shall only be acknowledged once the deposit funds reflect in Excellion’s nominated bank account.
3.3 The remaining 20% balance is due upon completion of the work and must be paid within a maximum of 2 (two) business days of invoice issuance.
3.4 Late payments shall attract interest at the highest rate permitted by the Financial Sector Conduct Authority (FSCA) plus 2% (two percent), as per the laws of the Republic of South Africa, calculated from the due date until payment in full.
3.5 Should payment not be made within the stipulated timeframes: - All discounts granted in good faith shall be automatically voided and forfeited; - The full undiscounted amount shall become immediately due and payable; - Excellion reserves the right to suspend all work, withhold delivery, and/or terminate the agreement without prejudice to its other rights.
3.6 No payment shall be deemed received until cleared funds are credited to Excellion’s bank account.
4. AUTHORITY TO PLACE AN ORDER
4.1 The Client warrants and represents that they have the full legal authority to place an Order, either: - In their personal capacity; - As a director of a company; - As a trustee of a trust; - As a person legally acting under written instructions from a governing body (Board of Directors, Trust, Body Corporate, or any similarly recognised legal entity).
4.2 Should an Order be placed and deposits paid without the necessary authorisations, such act shall be deemed fraudulent, and Excellion reserves the right to: - Cancel the Order immediately; - Retain all deposits as a cancellation fee; - Report the matter to the South African Police Service (SAPS) for criminal investigation; - Pursue civil recovery of all losses, costs, and damages suffered.
4.3 Excellion shall deal exclusively with the Client’s appointed representative who is legally appointed to oversee the project/repairs as part of his/her fiduciary duties, and shall take instructions only from such representative. The Client shall notify Excellion in writing of any change in representative.
5. CANCELLATION OF ORDERS
5.1 Once the deposit for an Order has been paid, cancellation shall not be permitted as a general rule.
5.2 Cancellation may only be considered under extraordinary circumstances, at the sole discretion of Excellion’s Board of Directors, in consultation with its accountants, auditors, and legal team.
5.3 Should a cancellation be approved, Excellion reserves the right to charge a cancellation fee of between 15% and 30% of the total Order value, plus: - Product return fees; - Contractor cancellation fees; - Administrative and handling charges; - Any other costs reasonably incurred by Excellion up to the date of cancellation.
5.4 Should any contractor or supplier refuse to refund deposits paid to them by Excellion, Excellion shall have the right to deduct such irrecoverable amounts from any credit to be issued to the Client.
5.5 No refund shall be processed until all goods are returned to Excellion in their original condition, subject to reasonable wear and tear.
6. REFUNDS AND CREDITS
6.1 Refund requests must be submitted in writing immediately upon approval of an Order cancellation.
6.2 Refunds shall only be considered where: - The product or service was procured or delivered within 7 (seven) Working Days from the date of cancellation approval; and - The supplier accepts the return without penalty.
6.3 A reasonable period to raise a dispute or request a refund shall be deemed as 7 (seven) Working Days from the date of delivery or completion.
6.4 After the expiry of the 7-day period, Excellion shall have the right, at its sole discretion, to: - Decline a monetary refund; - Allocate the credit to any outstanding invoice of the Client; or - Retain the credit for future services or products to be rendered.
6.5 Nothing in this clause shall diminish the statutory rights of a Consumer under the CPA where applicable.
7. PRODUCT OR SERVICE DISPUTES
7.1 Any product or service dispute must be reported to Excellion in writing within 2 (two) Working Days of receipt of the invoice or delivery of the goods/services.
7.2 Failure to raise a formal written complaint within the stipulated period shall result in the dispute not being recognised by Excellion.
7.3 The Client does not have the right to withhold payment pending resolution of a dispute raised outside the prescribed period. All undisputed amounts remain due and payable in accordance with Clause 3.
7.4 Should the Client withhold payment in contravention of this clause: - All discounts granted shall be automatically voided; - The full amount shall become immediately due and payable; - Excellion shall be entitled to pursue all remedies available under these Terms and at law.
8. RATES AND FEES
8.1 Excellion charges a Callout Fee that is industry-related and may be adjusted from time to time upon reasonable notice to the Client.
8.2 The Callout Fee does not include: - Travelling costs; - Delivery costs for materials to site; - Accommodation costs (where applicable); - Subsistence costs (where applicable).
8.3 Standard and overtime rates are calculated as follows:
Period
Rate Multiplier
Monday to Friday (08:00 – 17:00)
Standard Callout Rate
Monday to Friday (17:01 – 07:59, including up to 07:59 the next business day)
1.5 x Standard Rate
Saturdays (00:00 – 23:59)
1.5 x Standard Rate
Sundays and Public Holidays (00:00 – 23:59, including up to 07:59 the next business day)
2.0 x Standard Rate
8.4 All Callout Fees, Standard Labour Rates, travelling fees, and delivery fees are at the discretion of Excellion’s Directors, unless a specific rate structure has been agreed upon in writing and signed by both parties. In the absence of such written agreement, Standard Rates shall apply.
8.5 Quotations are valid for 15 (fifteen) calendar days from the date of issue, unless otherwise stated in writing.
9. OWNERSHIP AND RISK
9.1 All Equipment supplied by Excellion shall remain the sole property of Excellion until paid for in full, including all interest, costs, and charges.
9.2 Risk in the Equipment shall pass to the Client upon delivery or installation, whichever occurs first.
9.3 Until full payment is received, the Client shall: - Hold the Equipment as bailee for Excellion; - Not sell, pledge, encumber, or dispose of the Equipment; - Maintain the Equipment in good condition; - Insure the Equipment against all risks; - Permit Excellion to enter the premises to inspect or recover the Equipment.
9.4 The Client hereby irrevocably authorises Excellion to enter any premises where the Equipment is located to recover possession in the event of non-payment.
10. WARRANTIES
10.1 All warranties offered by Excellion’s suppliers are carry-in warranties. The period of warranty may vary from product to product and supplier to supplier.
10.2 “Carry-in warranty” means the Equipment must be returned to the supplier at the Client’s cost, and once repaired, collected again at the Client’s cost.
10.3 Excellion may charge for: - Collection and delivery fees; - Labour for removal and reinstallation; - Callout fees;
unless it is proven by the supplier that the warranty repair was necessitated by the negligence of Excellion.
10.4 Excellion offers a 3 (three) month warranty on all workmanship, subject to the following conditions: - The warranty is void if any third party tampers with or works on the Equipment; - The warranty is void if the Client engages a separate service provider or makes repairs themselves; - The warranty is void if any unauthorised equipment is added by the Client or at the Client’s request without manufacturer approval.
10.5 Nothing in this clause shall diminish the statutory warranty obligations of Excellion under the CPA where the Client is a Consumer.
11. LIMITATION OF LIABILITY
11.1 Subject to the CPA, Excellion shall not be liable for: - Indirect, consequential, or special damages; - Loss of profits, revenue, or business opportunity; - Data loss or corruption; - Any claim arising from the Client’s misuse, negligence, or failure to follow instructions.
11.2 Excellion’s total liability for any claim arising from these Terms shall not exceed the total amount paid by the Client for the specific Order giving rise to the claim.
11.3 These limitations shall not apply to: - Death or personal injury caused by negligence; - Fraud or fraudulent misrepresentation; - Any other liability that cannot be excluded under applicable law.
12. CLIENT COOPERATION AND SITE CONDITIONS
12.1 The Client shall: - Provide safe, unobstructed access to the site; - Ensure all necessary utilities (power, water, internet) are available; - Obtain all necessary permissions, consents, and approvals; - Remove all valuables and sensitive materials before work commences; - Comply with all health and safety requirements.
12.2 Should the Client fail to meet agreed terms or supply certain items or services that impact Excellion’s work, Excellion shall have the right to recover all monies lost due to such failure from the Client, including: - Extended labour costs; - Additional material costs; - Re-scheduling fees; - Lost opportunity costs.
13. FORCE MAJEURE
13.1 Neither party shall be liable for any failure to perform its obligations where such failure results from circumstances beyond its reasonable control, including but not limited to: - Acts of God, natural disasters, floods, fires; - War, terrorism, civil unrest, strikes; - Government actions, lockdowns, pandemics; - Power failures, internet outages, supplier delays.
13.2 The affected party shall notify the other party in writing within 5 (five) Working Days of the force majeure event and shall use reasonable endeavours to mitigate its effects.
14. DISPUTE RESOLUTION
14.1 Excellion is committed to resolving all disputes in an amicable and professional manner before resorting to formal legal proceedings.
14.2 Any dispute must be directed to Excellion in writing within 2 (two) Working Days of the event giving rise to the dispute. Failure to do so shall render such complaints null and void.
14.3 Upon receipt of a written dispute, Excellion shall: - Acknowledge receipt within 2 (two) Working Days; - Investigate the matter in good faith; - Provide a written response within 10 (ten) Working Days; - Propose reasonable resolution measures.
14.4 Should the Client wish to escalate the dispute, the Client may appoint an independent mediator at the Client’s sole cost. The mediator shall be mutually agreed upon by both parties.
14.5 If mediation fails within 30 (thirty) calendar days, either party may refer the dispute to: - Arbitration under the rules of the Arbitration Foundation of Southern Africa (AFSA); or - Litigation in the competent courts of the Republic of South Africa.
14.6 The parties agree that the law of the Republic of South Africa shall govern these Terms.
15. COLLECTION OF OUTSTANDING MONIES
15.1 Excellion reserves the right to take judgment against the Client to recover all outstanding fees, charges, and costs.
15.2 The Client shall be held liable for all legal fees on an attorney-and-client scale, including: - Collection commission; - Tracing fees; - Court costs; - Sheriff’s fees; - Expert witness fees.
15.3 Excellion reserves the right to approach the courts and bring an application for: - Judgment debt; - Liquidation or sequestration of the Client; - Attachment of assets;
against all directors of a company, heads of department, body corporate members, trustees, or any other parties involved in the transaction.
15.4 The Client acknowledges that this clause is a material inducement for Excellion to extend its services and is reasonable and necessary in the context of commercial risk.
16. ABUSE AND CRIMINAL ACTION
16.1 Should the Client, its employees, members, representatives, or any person associated with them: - Verbally abuse; - Physically abuse; - Threaten; or - Intimidate;
any of Excellion’s staff, management, directors, contractors, or suppliers, Excellion shall: - Immediately suspend all work; - Report the incident(s) to the South African Police Service (SAPS) as a criminal matter; - Reserve all civil and contractual rights.
16.2 Excellion maintains a zero-tolerance policy towards abuse, harassment, and intimidation.
17. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
17.1 All intellectual property rights in designs, drawings, software, methodologies, and know-how developed by Excellion remain the exclusive property of Excellion.
17.2 The Client shall not reverse-engineer, copy, modify, or distribute any Excellion intellectual property without prior written consent.
17.3 Both parties shall maintain the confidentiality of all proprietary information disclosed during the course of the engagement.
18. PRIVACY AND DATA PROTECTION
18.1 Excellion collects and processes personal information in accordance with the Protection of Personal Information Act 4 of 2013 (POPIA).
18.2 The Client consents to the collection, use, and storage of personal information necessary for the performance of services and compliance with legal obligations.
18.3 Excellion shall implement appropriate technical and organisational measures to protect personal data.
19. SUBCONTRACTING AND ASSIGNMENT
19.1 Excellion reserves the right to subcontract any portion of the work to qualified third parties, provided that Excellion remains liable for the performance of its obligations.
19.2 The Client may not assign its rights or obligations under these Terms without the prior written consent of Excellion.
20. SEVERABILITY
20.1 If any provision of these Terms is found to be invalid, unlawful, or unenforceable by a court of competent jurisdiction, such provision shall be severed from these Terms, and the remaining provisions shall continue in full force and effect.
20.2 The parties shall negotiate in good faith to replace any severed provision with a valid provision that achieves the nearest possible commercial intention.
21. ENTIRE AGREEMENT
21.1 These Terms and Conditions, together with any written quotation, order, or agreement signed by both parties, constitute the entire agreement between Excellion and the Client.
21.2 No variation, amendment, or waiver of these Terms shall be effective unless in writing and signed by a director of Excellion.
21.3 No indulgence, relaxation, or latitude granted by Excellion shall constitute a waiver of its rights.
22. NOTICES
22.1 All notices under these Terms shall be in writing and delivered by: - Email (with read receipt); - Registered post; - Hand delivery;
to the addresses specified in the Order or as otherwise notified in writing.
22.2 Email notices shall be deemed received 24 (twenty-four) hours after sending, unless the sender receives a delivery failure notification.
23. GOVERNING LAW AND JURISDICTION
23.1 These Terms and Conditions shall be governed by and construed in accordance with the laws of the Republic of South Africa.
23.2 The parties submit to the exclusive jurisdiction of the South African courts, provided that nothing herein shall prevent Excellion from enforcing its rights in any other jurisdiction where the Client has assets or operations.
24. ACKNOWLEDGEMENT
24.1 By placing an Order, accepting a quotation, or making payment, the Client acknowledges that they have: - Read and understood these Terms and Conditions; - Had the opportunity to seek independent legal advice; - Agreed to be bound by these Terms and Conditions; - Confirmed their authority to enter into this agreement.
24.2 The Client further acknowledges that these Terms are fair, reasonable, and necessary for the protection of Excellion’s legitimate commercial interests, and do not offend public policy or the CPA.
25. AMENDMENTS
25.1 Excellion reserves the right to amend these Terms and Conditions from time to time. Amendments shall be effective upon publication on Excellion’s website or written notification to the Client.
25.2 Continued engagement with Excellion after notification of amendments shall constitute acceptance of the amended Terms.
26. INSURANCE
26.1 Excellion shall not carry any insurance except for public liability insurance. All other insurances, including but not limited to property, equipment, transit, fire, theft, and all-risk insurance, shall be provided for by the Client.
26.2 The Client shall ensure that insurance coverage extends to all Equipment supplied by Excellion from the time and date of delivery on site, regardless of whether ownership has transferred or payment has been made in full.
26.3 The Client shall provide proof of such insurance to Excellion upon request and shall maintain such coverage until the Equipment is paid for in full and ownership has formally transferred to the Client, or until the Equipment is removed from the Client’s premises, whichever occurs first.
26.4 Should the Client fail to maintain adequate insurance, the Client shall bear full risk for any loss, damage, or destruction of the Equipment and shall remain liable for all amounts due under the Order.
26.5 Nothing in this clause shall diminish the Client’s obligations under Clause 9 (Ownership and Risk).
SIGNED FOR AND ON BEHALF OF EXCELLION GROUP (PTY) LTD:
Marius Yssel (Digitally Signed)
Title: Director
Date: 01 September 2024