Force Majeure Clause (Pro-Service Provider)

Explaining Force Majeure

As the service provider, you bear most of the non-payment obligations and are most likely to be impacted by a force majeure event. However, this sample clause aims to be reasonable by including a force majeure clause that applies to both parties.

Including a mutual provision also allows you, the service provider, to include the optional exception for payment obligations (which aims to prevent the customer from asserting force majeure to excuse its nonpayment).

This pro-service provider clause includes an unrestricted or open-ended list of force majeure events, which aims to cover any unexpected eventuality outside of the control of the impacted party even if the event is not explicitly listed. Typically, the party that bears most of the contract’s non-payment obligations prefers to include an unrestricted list of force majeure events. If the parties want to limit the scope of the force majeure clause to an enumerated list of events, they should instead negotiate to include a finite list of force majeure events.

The parties should determine whether the impacted party should also have the right to terminate the agreement if the impacted party’s failure or delay remains uncured for the specified number of days.

Sample Clause

Force Majeure.

No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of the Customer to make payments to Service Provider hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (”Impacted Party”) reasonable control, including, without limitation, the following force majeure events (”Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.

The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section, the other Party may thereafter terminate this Agreement upon 30 days’ written notice.