I’ve always been puzzled about the use of force majeure clauses in the context of disaster recovery agreements. How can a clause which excuses non-performance when there is something going on beyond the reasonable control of the supplier have any place in a contract which hopes to protect the customer against exactly that - an uncontrollable event?
Those great folks at the Society for Computers and Law have commented on just this point in this useful explanation of the history and use of force majeure provisions. Concluding that:
“From a business continuity planning point of view, force majeure clauses require detailed examination, since they will come into effect under many circumstances where a business continuity plan is invoked. If you fail to do this you are leaving the door wide open to unexpected withdrawal of key services at a critical point in time.”
Standard clauses which you may rightfully accept in other circumstances may not be acceptable when looking at disaster recovery or business continuity services. Keep your eye out for them!
SCL: ‘Greater Force’ - or A Good Excuse for Non-Performance? [paid subscription required]
