Changes proposed by EnergyAustralia Sample Clauses

Changes proposed by EnergyAustralia. As indicated elsewhere in this submission, EnergyAustralia has no problem with the Service Provider seeking to reasonably limit its liabilities for breach of the Agreement and negligence. EnergyAustralia considers that the limitation (via Clauses 28.4 and 28.5) of the Service Provider's liability to a capped level of Direct Damages (with Consequential Damages excluded) is reasonable. However, setting the "cap" for Direct Damages by reference to the amount recovered by the Service Provider under its insurance policies is uncertain, in the absence of a clear obligation on the Service Provide to obtain insurances in appropriate amounts. EnergyAustralia also considers that the User should be entitled to the same liability limitation protections as the Service Provider for the User indemnity under Clause 28.2 (as well as any other User indemnities under the Agreement, if they are not deleted as we recommend above) for the reasons outlined in Section 3.1.3(b) above. Lastly, the User's obligation in Clause 28.9 to impose liability limitations on its Customers should be: • changed to an obligation to use reasonable endeavours to do this, given the User's limited ability to impose such an obligation on Customers in a highly competitive retail gas market, as outlined in Section 3.1.3(b) above; and • subject to any regulatory requirements imposed on the User, given that the content of what Users may put in their retail gas supply contracts is heavily regulated (and will be even more so under the proposed National Energy Customer Framework legislation). We have marked up our suggested changes to Clause 28 to achieve these outcomes in the Attachment 3. It should be noted that in our marked up changes to Clause 28.4(b)(i) we have left blank the dollar amounts for the insurances to be obtained by the Service Provider. This is because EnergyAustralia does not have access to information from JGN about its insurance risk profile, its current insurances or what other insurances might reasonably be available to JGN at reasonable cost. EnergyAustralia submits that this is information which the AER is in a position to require JGN to provide to it, so that the AER can then assess the appropriate amounts for JGN to include in Clause 28.4(b)(i). 4 Reference Tariff Policy‌