What It Does
A force majeure clause allocates the risk of non-performance when a defined extraordinary event prevents or delays a party's performance. For in-house counsel, it decides whether your counterparty is excused, and for how long, when they cannot deliver. Courts, especially in New York, construe these clauses narrowly: they enforce the events the parties listed, and where a catch-all applies, events of a similar kind. So the operative question is whether the trigger list reaches the disruptions your business faces. A practical test: if the listed events would not have covered the March 2020 shutdowns, the clause is drafted too narrowly for the risks you carry today.
Excuses delayed or missed performance when an extraordinary event prevents it
Names the qualifying events: acts of God, war, government action, pandemics, cyber incidents
Defines the notice and mitigation duties for the party invoking it
Sets the suspension period and the point at which either party can terminate
Decides whether fees keep accruing while performance is suspended
Pandemic and cyber-incident language has become far more common in force majeure clauses drafted since 2020.
When You'll See It
Force majeure shows up in almost every commercial contract: SaaS agreements, vendor MSAs, leases, services contracts, supply agreements, and most M&A definitive documents. It sits at the back, in "miscellaneous" or "general provisions," next to notices and governing law. The wording varies most in long-term supply and SaaS, where the supplier has the most to gain from a broad trigger list.
It matters most where continuity is the whole point: a sole-source supplier, a critical software vendor, an event with a fixed date. The more your business depends on the other side showing up, the harder you read the trigger list and the termination window. See also: limitation of liability, termination for convenience, and material adverse change.
Examples
Negotiate
If you're the customer
You want performance
Name cyber incidents, pandemics, and supplier-of-supplier failures in the trigger list. Do not rely on the catch-all phrase.
Require notice within 5 to 10 business days, drafted as a condition to invoking the clause, so a late claim is waived.
Insist on a mitigation obligation. Without it, your vendor has no reason to resume.
Add a termination right after 30 to 60 days of suspension so you keep an exit.
Suspend fees during the suspension. You should not pay for performance you did not get.
If you're the supplier
You want optionality
Keep the trigger list broad. Push for "any cause beyond the reasonable control of the affected party" as the operative phrase.
Push the notice window to 15 to 30 business days. Operational triage takes time.
Resist explicit fee-suspension language. Negotiate partial fees to cover fixed costs.
Cap your liability for inability to perform during a force majeure event, separate from the broader limitation of liability clause.
The clause your counterparty hands you is rarely the one that gets signed. Treat their first draft as a starting position.
Red Flags
A trigger list that includes "economic hardship," "market conditions," or "increased cost of performance." These turn force majeure into a margin-protection clause for the supplier.
No notice or mitigation obligation, which makes the clause a free pass.
A termination right available to the supplier but withheld from the customer.
"Force majeure" defined to include any breach by the supplier's own subcontractors, which pushes supply-chain risk back onto you.
No fee-suspension language paired with a long suspension window, so you pay for nothing.