I have noticed over the years, that the point in contract negotiations where the lawyers start talking about the force majeure clause often coincides with the point at which clients show the first serious signs of losing the will to live.
And yet (strange but true) if a force majeure clause does not meet the business needs of one or both parties, it really is worth arguing about…..yes really.
So next time you are reviewing a contract, think about the stuff you can’t control, and after you get past considering the “fun stuff” like alien invasion and dragons emerging from the city sewers to burn down your offices, think about some really practical stuff, like how reliant you are on a particular subcontractor, and what you would do if (for example) their workforce went on strike and pickets prevented anything leaving their locations? Would you be able to find an alternative supplier, or would you be stuck? If you think you might just be in a really bad place, then make sure that strikes in the workforce of your subcontractors are not excluded from the force majeure provisions.
If there is satellite service incorporated into a telecommunications solution, have you made sure that solar flares are expressly identified as potential force majeure events? (BTW if you are incorporating something like satellite into a solution and you are not yourself a satellite provider, it is a really good idea to identify some of the things your subcontractor thinks are force majeure events and try to flow these into your customer contract).
I think like a technology lawyer, but the same principles apply whatever sort of contract you are trying to negotiate. Think about what the transaction looks like and think about what is outside of your control. That is the stuff you want to try and fold into that force majeure clause. There is often catch all language which refers to “anything outside of either party’s control, whether or not similar to the foregoing”, and for sure that is better than nothing…….but if it really matters, don’t leave it to chance. Put it in there.
If you would like any assistance preparing or reviewing a force majeure clause for a particular b2b service or contract, contact email@example.com