Examples of the Range of Force Majeure Clauses
Jeffrey R. Schmieler, Esquire
1. Example from a Services Agreement: Neither Party will be liable for any failure or inability to perform, or delay in performing, such Party’s obligations under this Agreement if such failure, inability or delay arises from an extraordinary cause beyond the reasonable control of the non-performing Party; provided that such Party diligently and in good faith attempts to cure such non-performance as promptly as practicable.
2. Example from a Labor Agreement: If a production cannot be performed and/or the theater cannot operate because of fire, accident, strike, riot or act of God, or the public enemy, which could not be reasonably anticipated or prevented, the Employer will only be responsible to pay one (1) day’s pay to each employee who lost at least one (1) day’s work regardless of how long the incident lasts.
3. Example from an Employment Agreement: Neither Party will be liable for any delay or failure in performance under this Agreement deemed as a result, directly or indirectly, of any act of God, acts of civil or military authority, acts of public enemy, terrorism, war, accidents, fires, explosions, earthquakes, floods, failure of public transportation, or any similar or dissimilar cause beyond the reasonable control of either Party.
4. Example broadly defined Force Majeure Clause. Neither party is responsible for any failure to perform its obligations under this Agreement if it is prevented or delayed in performing those obligations by an event of force majeure, including the direct and indirect consequences of said force majeure. Neither Party will be liable for any failure in performance under this Agreement deemed as a result, directly or indirectly of any public emergency, legal restrictions, act of God (whether or not such acts of God have occurred frequently), act of civil or military authority, acts of public enemy, terrorism, war, accidents, fires, explosions, earthquakes, floods, failure of public transportation or communication, viral or bacterial outbreaks, epidemics, pandemics, health related public emergencies, epidemics, pandemics, a national disaster event, large scale disasters, national emergencies, or any similar or dissimilar cause or event beyond the reasonable control of either Party. Where there is an event of force majeure, the party prevented from or delayed in performing its obligations under this Agreement must immediately notify the other party giving full details of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that party in, performing its obligations under this Agreement and that party must use reasonable efforts to mitigate the effect of force majeure upon its performance under the Agreement and to fulfill its obligations under the Agreement. Licensee has no liability for (i) any costs, losses, expenses, damages, or payments otherwise due under this Agreement during an event of force majeure; and (ii) any costs incurred as a result of delays caused by a force majeure event. This Force Majeure Clause is intended to be liberal construed in accordance with the intendment and understanding of the Parties.
In view of the current Coronavirus Pandemic, it is essential to add language to the traditional Force Majeure Clauses to include Virus Related Pandemics.