TERMS & CONDITIONS
General Terms & Conditions of Sale
(These Terms apply to all sales of goods by ERS Tech Australia Pty Ltd (“Seller”) to any purchaser (“Buyer”), unless otherwise agreed in writing.)
- Definitions & Interpretation
1.1. “Agreement Price” means the total price payable for the Goods, as stated on each invoice or order confirmation, including any applicable taxes, fees, or charges.
1.2. “Deposit” means the percentage of the Agreement Price (typically 30 %) that Buyer must pay before Seller commences production or assembly of the Goods. The exact Deposit percentage and due date will be specified on each invoice.
1.3. “Balance” means the remainder of the Agreement Price after deduction of the Deposit, payable in one or more instalments as set out in clause 3.
1.4. “Delivery Date” means the date on which the Goods are delivered to Buyer’s nominated address or to a carrier for onward carriage to Buyer, whichever occurs first.
1.5. “Goods” means all items (including but not limited to LED fixtures, high-bay lights, emergency luminaires, and any custom or made-to-order products) sold by Seller under these Terms.
1.6. “PPSA” means the Personal Property Securities Act 2009 (Cth).
1.7. “PPS Register” means the Personal Property Securities Register established under the PPSA.
- Application & Order Acceptance
2.1. These Terms govern every contract for the sale of Goods by Seller to Buyer, notwithstanding any purchase order, correspondence, or prior dealings.
2.2. No variation of these Terms is binding unless agreed in writing and signed by an authorised representative of Seller.
2.3. Any order placed by Buyer constitutes an offer to purchase under these Terms. Seller’s written acceptance (including by issuing an invoice or commencement of production) constitutes a binding contract.
- Payment Terms
3.1. Deposit
3.1.1. Buyer shall pay the Deposit (as specified on Seller’s invoice) before Seller begins any production, assembly, or packaging of the Goods.
3.1.2. The Deposit is non-refundable. Once Seller applies the Deposit toward production costs, Buyer has no right to demand its refund—even if Buyer or Buyer’s agents have not yet physically received the Goods.
3.2. Balance
In all cases, Seller must receive cleared funds (70%) before any Goods can be released.
3.3. Late Payment
3.3.1. If any amount is not paid by its due date, Buyer shall pay interest at 1.5 % per month (compounded monthly) on the overdue sum from its due date until payment in full.
3.3.2. All bank charges, currency conversion fees, and other transaction costs are for Buyer’s account.
- Retention of Title & Security Interest
4.1. Legal title to the Goods remains with Seller until Seller has received payment in full of the Agreement Price (Deposit + Balance). Risk of loss or damage, however, passes to Buyer upon Delivery Date.
4.2. Until payment in full, Buyer holds the Goods as bailee for Seller and must store them separately, clearly marked as Seller’s property. Buyer must not sell, encumber, pledge, or grant any other security interest over the Goods.
4.3. Seller’s retention of title creates a PPSA security interest. Buyer consents to Seller registering and perfecting that interest on the PPS Register. Buyer waives any right to receive a verification statement or make any claim for other security interests over the Goods.
- Delivery, Inspection & Returns
5.1. Delivery
5.1.1. Delivery is FCA Seller’s warehouse (Incoterms 2020), unless otherwise agreed in writing. Buyer is responsible for all carriage, insurance, and import/export charges from that point.
5.1.2. Buyer must inspect the Goods upon arrival and immediately notify Seller in writing of any visible damage or shortage.
5.2. Returns & Restocking
5.2.1. Buyer has seven (7) calendar days from Delivery Date to return any Goods that do not conform to the SKU, quantity, or specifications stated in Seller’s invoice or written order confirmation (“Non-Conforming Goods”). Returns beyond that period are not accepted.
5.2.2. Any return of Non-Conforming Goods within seven (7) days is subject to a 30 % restocking charge, payable by Buyer. Returned Goods must be in original, unopened cartons with all labels intact and free from damage.
5.2.3. If Buyer fails to notify Seller within seven (7) days of Delivery Date, Buyer is deemed to have accepted the Goods as conforming, and no return or refund is permitted.
5.2.4. All custom, made-to-order, high-bay, and emergency products are deemed bespoke and may not be returned or cancelled after Buyer’s order confirmation.
- Warranty & Limitation of Liability
6.1. Limited Warranty
6.1.1. Seller warrants that, for a period of 24 months from Delivery Date, the Goods will be free from material defects in design, materials, and workmanship, consistent with the original manufacturer’s warranty.
6.1.2. Buyer must notify Seller in writing of any defect within 14 days of discovery and allow Seller to inspect. Seller will, at its option, repair or replace defective Goods at no charge, provided Buyer returns the defective Goods at Buyer’s expense.
6.2. Exclusion of Implied Terms
6.2.1. To the maximum extent permitted by law, all other warranties or guarantees (express, implied, or statutory), including any implied conditions of merchantable quality or fitness for a particular purpose under the Australian Consumer Law, are excluded, as this is a commercial transaction.
6.3. Limitation of Liability
6.3.1. Seller’s liability for breach of the warranty in clause 6.1 is limited exclusively to repair or replacement of the defective Goods.
6.3.2. Seller is not liable for any indirect, incidental, special, or consequential damages, including but not limited to loss of profits, loss of revenue, project delays, or third-party claims arising from the use or inability to use the Goods.
6.3.3. This limitation applies even if Seller has been advised of such potential damages.
- Default & Remedies
7.1. If Buyer:
(a) fails to pay any amount by its due date;
(b) repudiates these Terms;
(c) becomes insolvent or enters external administration; or
(d) uses the Goods in breach of clause 4.2,
then Seller may, at its election and without prejudice to any other remedy:
(i) treat the contract as terminated;
(ii) retain the Deposit as liquidated damages (not a penalty);
(iii) reclaim and repossess any Goods in Buyer’s possession or control, without notice;
(iv) resell the Goods (or any part) at a commercially reasonable price; and
(v) claim from Buyer any deficiency (the difference between the resale proceeds and Buyer’s unpaid obligations), plus interest and costs.
7.2. Buyer indemnifies Seller against any losses, costs, or expenses (including legal fees) incurred in enforcing Seller’s rights under this clause.
- Personal Property Securities (PPSA)
8.1. Buyer acknowledges that Seller has a security interest in all Goods supplied until payment in full. Seller may register that interest on the PPS Register.
8.2. Buyer must:
(a) sign any documents and provide any information that Seller reasonably requires to perfect or maintain its security interest; and
(b) not register any security interest that may conflict with Seller’s PPSA interest without Seller’s prior written consent.
8.3. Buyer waives any rights to receive notice of verification statements or to object to Seller’s security interest under Sections 157–158 of the PPSA.
- Miscellaneous
9.1. Governing Law & Jurisdiction
These Terms are governed by the laws of Victoria, Australia. Buyer submits to the exclusive jurisdiction of the courts of Victoria.
9.2. Force Majeure
Neither party is liable for delay or failure to perform if due to events beyond reasonable control (e.g., natural disasters, labor disputes, acts of God, government actions).
9.3. Severability
If any provision is held invalid or unenforceable, the remainder of these Terms remains in full force and effect.
9.4. Entire Agreement
These Terms, together with Seller’s invoice or order confirmation (and any express written variation), constitute the entire agreement between the parties regarding the Goods. Any earlier agreements or representations not expressly included are of no effect.