From Boilerplate to Battleground
For decades the force majeure clause was the paragraph nobody read — standardised language pasted near the end of the contract and forgotten. Recent events ended that complacency. When the COVID-19 pandemic disrupted commercial contracts at scale, the boilerplate force majeure clause became, almost overnight, the difference between a business that could suspend obligations and one trapped performing under impossible conditions. The lesson for IT buyers is permanent: force majeure is not a formality but one of the clauses that decides who bears the cost of the next disruption, and it deserves the same scrutiny we apply to dispute resolution and the other terms in our guide to reading a software contract.
The COVID Lessons
The pandemic taught three durable lessons. First, generic wording fails when tested — clauses that referred vaguely to events beyond reasonable control produced years of litigation over whether a pandemic or a government order qualified. Well-drafted clauses now enumerate the triggers explicitly: pandemics, epidemics, public-health emergencies, government orders, shutdowns, quarantine and travel restrictions, supply-chain disruption and component shortages. Second, the clause cuts both ways — a buyer who welcomes a broad clause that excuses the vendor may find it has excused the wrong party. Third, the relief a force majeure clause provides depends entirely on the obligations it suspends and the ones it does not, which is why the detail matters far more than the heading.
The pandemic also exposed how courts actually read these clauses, and the lesson is uncomfortable for the careless. Where a clause listed specific events, judges generally confined relief to those events and declined to stretch a catch-all to cover a pandemic nobody had named; where a clause was vague, the litigation was long, expensive and unpredictable for both sides. The practical takeaway is that precision protects you, ambiguity protects no one, and the time to achieve precision is at drafting. A force majeure clause inherited unchanged from a template written years before the disruptions that now define enterprise risk is a clause written for the wrong world.
The Cloud Outage Question
The most contested modern question is how force majeure applies to cloud infrastructure, and it is where buyer and vendor interests diverge most sharply. Vendors would like a single-provider outage — an AWS region going down, say — to count as force majeure that excuses them from their SLA. Buyers should resist this firmly. Cloud providers are expected to architect for redundancy, so a routine provider incident is a failure to design properly, not an act of God. The defensible position limits force majeure relief to genuinely catastrophic, regional infrastructure failures, while routine outages remain subject to the SLA and its service credits. Concede the broad version and you have quietly written off the availability guarantee you are paying for.
A single-provider cloud outage is a design failure, not an act of God. Let the vendor classify it as force majeure and you have written off the availability guarantee you are paying for.
Drafting the Clause
A buyer-protective force majeure clause has a recognisable shape. It is reciprocal but scoped — applying to both parties yet defined as a closed list of genuinely uncontrollable events rather than an open catch-all. It explicitly excludes foreseeable IT issues: routine outages, capacity shortfalls, sub-contractor failures and anything the vendor could have mitigated through reasonable redundancy. It preserves the customer's payment relief where it cannot use the service, rather than only relieving the supplier of delivery. And it carries clear procedural obligations, set out below. These are the same governance fundamentals captured in our CIO Contract Governance white paper, and they apply with particular force to outsourced and managed-service arrangements where a single event can cascade — the territory of our IT outsourcing negotiation practice.
Pay particular attention to the sub-contractor and supply-chain dimension, because it is where modern force majeure arguments most often turn. A vendor whose own sub-processor or hardware supplier fails will try to claim that failure as force majeure; a buyer-protective clause makes the vendor responsible for its supply chain except in genuinely uncontrollable circumstances, and requires it to maintain alternative sources for critical dependencies. The clause should also interact cleanly with your business-continuity and disaster-recovery obligations elsewhere in the contract, so that a vendor cannot invoke force majeure to escape commitments it separately promised to meet through redundancy. Read together, these provisions decide whether a single upstream failure becomes the vendor's problem to solve or yours to absorb.
| Include | Exclude |
|---|---|
| Enumerated triggers (pandemic, government order) | Open-ended catch-all wording |
| Catastrophic regional infrastructure failure | Single-provider or routine cloud outages |
| Notice and mitigation obligations | Foreseeable, avoidable IT failures |
| Termination right if event persists | Indefinite suspension with no exit |
Notice, Mitigation and Termination
Procedure decides whether relief is actually available. The party claiming force majeure must give timely written notice and demonstrate genuine mitigation — and both sides must document the cause, the effect and the steps taken to resume service. The same evidential discipline that wins a dispute wins a force majeure argument. Critically, negotiate a termination right: if the event persists beyond a defined period — 30 days is a common threshold — the customer should be able to exit without penalty rather than remaining bound to a supplier that cannot perform. Without it, force majeure becomes an indefinite get-out for the vendor and an open-ended trap for you.
Settle the payment question explicitly, because it is the one both sides most want to leave ambiguous. If a force majeure event stops the vendor delivering the service, you should not continue paying for a service you cannot use; the clause should suspend your payment obligation in proportion to the lost service rather than merely excusing the vendor's performance. Vendors will resist this, since it shifts the financial pain of disruption back to them, but it is the fair allocation and the one a well-advised buyer holds out for. Where pre-paid fees are involved, secure a pro-rata credit or refund for the suspended period rather than allowing the vendor to keep money for nothing delivered.
Reviewing Force Majeure Now
Every material IT contract should have its force majeure clause reviewed against these lessons rather than left as inherited boilerplate. Check the trigger list, the cloud-outage treatment, the payment-relief position, the notice and mitigation obligations, and the termination threshold. A clause that looked harmless when signed in calmer times may allocate the next disruption's cost entirely to you. To review the force majeure and continuity terms across your contracts, or to negotiate them into an upcoming agreement, request a confidential briefing.