AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12EC Limitation of liability for breach of certain conditions or warranties

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ACT 2001 - SECT 12EC

  (1)   Subject to this section, a term of a contract for the supply by a person (the supplier ) of financial services other than services of a kind ordinarily acquired for personal, domestic or household use is not void under section   12EB merely because the term limits the liability of the supplier for a breach of a condition or warranty to:

  (a)   the supplying of the services again; or

  (b)   the payment of the cost of having the services supplied again.

  (2)   Subsection   (1) does not apply in relation to a term of a contract if the person to whom the services were supplied establishes that it is not fair or reasonable for the supplier to rely on that term of the contract.

  (3)   In determining for the purposes of subsection   (2) whether or not reliance on a term of a contract is fair or reasonable, a court must have regard to all the circumstances of the case and, in particular, to the following matters:

  (a)   the strength of the bargaining positions of the supplier and the person to whom the services were supplied (the buyer ) relative to each other, taking into account, among other things, the availability of equivalent services and suitable alternative sources of supply;

  (b)   whether the buyer received an inducement to agree to the term or, in agreeing to the term, had an opportunity to acquire the services or equivalent services from any source of supply under a contract that did not include that term;

  (c)   whether the buyer knew or ought reasonably to have known of the existence and extent of the term (having regard, among other things, to any custom of the trade and any previous course of dealing between the parties).