1. Force Majeure
EITHER (Where you are acting for the party more likely to want to rely on the force majeure clause, e.g. a service provider)
1.1 In this Agreement, “force majeure” shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to strikes, lock-outs or other industrial disputes, nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage [(excluding malicious damage involving the employees of the affected party or its sub-contractors)], compliance with any law or governmental order, rule, regulation or direction [coming into force after the date of this Agreement], accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors and, where they are beyond the reasonable control of the party so prevented, any other acts, events, omissions or accidents.
OR (where you are acting for the party less likely to want to rely on the force majeure clause, e.g. the recipient of a service)
1.1 In this Agreement, “force majeure” shall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented [including, without limitation, to the extent that these are beyond such control, [nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, fire, flood or storm]] except that:
- neither lack of funds nor a default or misconduct by any third party employed or engaged as an agent or independent contractor by the party claiming force majeure shall be a cause beyond the reasonable control of that party unless caused by events or circumstances which are themselves force majeure; and
- mere shortage of labour, materials, equipment or supplies shall not constitute force majeure unless caused by events or circumstances which are themselves force majeure.
Strikes, lock-outs or other industrial disputes involving the work force of the party so prevented or of any of its sub-contractors or suppliers or the occurrence of an event associated with economic and monetary union in the European Union shall not constitute “force majeure” for the purposes of this Agreement.
1.2 If either party is [prevented][prevented or constrained] from performance of any of its obligations under this Agreement by force majeure, that party (the “Claiming Party”) shall as soon as reasonably possible [and in any event within one (1) Business Day after commencement of the force majeure] serve notice in writing on the other party specifying the nature and extent of the circumstances giving rise to force majeure, and shall subject to service of such notice have no liability in respect of any delay in performance or any non-performance of any such obligation [save for any payment obligation which shall continue in full force and effect] (and the time for performance shall be extended accordingly) to the extent that the delay or non-performance is due to force majeure [PROVIDED THAT:
- the Claiming Party could not have avoided the effect of the force majeure by taking precautions which, having regard to all matters known to it before the occurrence of the force majeure and all relevant factors, it ought [reasonably] to have taken but did not take; and
- the Claiming Party has [taken all steps as are necessary] [used [reasonable/best] endeavours] [(without being obliged to incur any expenditure or cost)] to mitigate the effect of the force majeure and to carry out its obligations under this Agreement in any other way that is [reasonably] practicable.]
1.3 [If either party is prevented from performance of [substantially] all of its obligations by force majeure for a continuous [or aggregate ]period of more than [three ][six ]months in total, the other party may terminate this Agreement immediately on service of written notice upon the party so prevented, in which case [neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist] [or] [if appropriate, provide for any specific provisions which are to be saved and/or specify whether payments are to be made for goods or services already delivered or rendered, or goods not paid for are to be returned or compensatory payments are to be made].]
1.4 [If [either party] is prevented from performance of [substantially] all of its obligations by force majeure for a continuous [or aggregate ]period of more than [one] month[s] in total (the “Force Majeure Period”), the [Licence Term] shall be extended by a period of time equal to the Force Majeure Period[, subject to earlier termination of the Agreement under clause [1.3]].]
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