7Limitation of liability of distributors—modifications

7 Limitation of liability of distributors—modifications

7 Limitation of liability of distributors—modifications

(1) In this section, the approved distributor limitation of liability clause is a clause to the following effect—

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(1) The distributor is not liable for indirect, economic, special or consequential losses suffered by a customer as a result of a partial or total failure to supply energy due to an act or omission by the distributor or an officer or employee of the distributor done or omitted to be done in bad faith or through negligence.

(2) The distributor’s liability for losses suffered by a customer as a result of partial or total failure to supply energy under a contract, other than a loss for which liability is excluded by this section or the National Law, is limited, for all failures during a calendar year, to the lesser of the following—

(a) the cost of repair or replacement of property damaged as a result of the failure,

(b) $5,000.

(2) For the National Law, section 316A(3)(a)—

(a) an agreement with a small customer varying or excluding the operation of that Law, section 316(1) must be in or to the effect of the approved distributor limitation of liability clause, and

(b) a condition varying or excluding the operation of that Law, section 316(1) in a proposed standard connection contract prepared under that Law, section 75 must be in or to the effect of the approved distributor limitation of liability clause.

(3) The National Energy Retail Rules, rule 83 is taken to be modified to provide that a distributor may include an approved distributor limitation of liability clause in a negotiated connection contract with a small customer but must not include any other limitation of liability for breach of contract or negligence by the distributor in a negotiated connection contract with the small customer.

(4) The National Energy Retail Rules, Schedule 2, clause 8 is taken to be modified—

(a) to permit the inclusion in that clause of the approved distributor limitation of liability clause, with appropriate modifications to reflect the way of referencing the distributor and the National Law, and

(b) if that clause is included, by inserting “(except as provided by this clause)” after “negligently” in clause 8(c).