Force majeure

US commercial-market reference points; verify against the matter's jurisdiction pack — some jurisdictions imply relief doctrines (frustration, impossibility, hardship) that interact with the drafted clause.

Balanced position

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.

Common one-sided variants

Tilted toward the invoking party (often the provider):

• Coverage of "economic hardship," market changes, labor cost increases, or supplier price rises — converting ordinary business risk into an excuse for non-performance.
• No notice or mitigation obligation, and no duty to resume.
• No termination right for the other party no matter how long the event lasts, while fees keep accruing.

Tilted toward the non-invoking party (often the customer):

• Only one party may invoke the clause at all.
• Payment obligations 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.

Fallback ladder

1. Mutual clause, beyond-reasonable-control standard with an illustrative (not exhaustive) event list, notice + mitigation duties, 30-90-day termination right (preferred).
2. Accept an exhaustive event list if it includes government action, epidemics, and third-party infrastructure failure, and keeps a catch-all for events beyond reasonable control.
3. Accept a longer continuation threshold (up to 120 days) before the termination right, paired with fee suspension during the event.
4. Accept asymmetric invocation only where one party's performance is the only performance at risk, documented in the rationale.

Below rung 4 — hardship-type triggers or indefinite excuse with fees still accruing — escalate.

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.