Force majeure

Topic: Force majeure — covered events, notice, exit rights. Contract type: All commercial agreements with ongoing performance. Jurisdiction: US commercial market; verify against the matter's jurisdiction pack — some jurisdictions imply relief doctrines (frustration, impossibility, hardship) that interact with the drafted clause. Positions are firm-configurable defaults overridable via .dochaus/profile.md.

Preferred

Performance (other than payment of amounts already due) is excused while and to the extent prevented by events beyond the affected party's reasonable control — typically natural disasters, war, terrorism, civil unrest, government action, epidemics, and failures of third-party infrastructure not caused by the affected party. The invoking party must give prompt notice, use reasonable efforts to mitigate and resume, and keep performing unaffected obligations. Either party may terminate without liability if the event continues beyond a stated period, commonly thirty to ninety days.

Neither party shall be liable for any failure or delay in performance (other
than payment obligations for amounts already due) to the extent caused by an
event beyond its reasonable control, provided the affected party gives prompt
written notice, uses commercially reasonable efforts to mitigate the effect
of the event, and resumes performance as soon as reasonably practicable. If a
force majeure event continues for more than sixty (60) days, either party may
terminate the affected order upon written notice, and Provider shall refund
any prepaid fees for services not delivered.

Off-market variants to watch. Invoking-party-favorable: coverage of "economic hardship," market changes, labor cost increases, or supplier price rises — turning ordinary business risk into an excuse; no notice, mitigation, or duty to resume; no termination right for the other party however long the event lasts while fees keep accruing. Non-invoking-party-favorable: only one party may invoke; payment for services actually delivered excused alongside performance; a covered-events list so narrow (or a strict foreseeability bar) that genuinely uncontrollable events give no relief.

Fallbacks (ordered)

1. Offer when the counterparty wants a closed event list: accept an exhaustive list if it includes government action, epidemics, and third-party infrastructure failure, and keeps a catch-all for events beyond reasonable control.
2. Offer when the counterparty needs a longer relief window: accept a longer continuation threshold (up to 120 days) before the termination right, paired with fee suspension during the event.
3. Offer when only one party's performance is genuinely at risk: accept asymmetric invocation, documented in the rationale.

Walk-away floor

Hardship-type triggers (economic or market changes), or indefinite excuse with fees still accruing and no exit.

Escalation trigger

At or below the floor, do not concede. Route to the supervising lawyer for the matter (or the .dochaus/profile.md Escalation Rules contact) before accepting a clause that converts ordinary business risk into excused non-performance.

Rationale: Force majeure allocates the cost of the genuinely uncontrollable; the covered-events list and the prolonged-event exit are where a boilerplate clause becomes a one-sided risk transfer.