MPL General Counsel Corner – Now I have to worry about what God does!
For most, it is a holiday weekend where you are spending time with family and friends. Some are even attending religious services and praying to whatever higher power or God they choose. It is this very higher power or God that is the topic for this week and in case you think this is a religious-themed update, think again.
When is the last time you read through one of your business contracts or reviewed your insurance? Did you ever notice the following term, FORCE MAJEURE, and wonder what that means? Below is a sample provision from www.bloomberglaw.com:
“FORCE MAJEURE. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy.
For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.”
Ok, if your eyes aren’t crossed or you haven’t fallen asleep, you are probably saying: What does this mean? In layman’s terms, everything described in the first paragraph are reasons that someone could use for not fulfilling their contractual obligation (e.g. a hurricane hits the Gulf of Mexico and a refinery had to shut down). Everything listed in the second paragraph are the exclusions.
You may not be aware of it, but these types of clauses are in a lot more of your agreements than you think. I can assure you that as a result of the pandemic, larger organizations and entities are certainly fine tuning these provisions and will be rolling out revised versions in your next renewal. I would even suggest that some of the terms in paragraph one may end up in paragraph two (think “epidemic, pandemic and quarantine”).
If you have a concern or question about this type of provision, it might be time to review your insurance coverages, contracts or any other formal agreements with your professional team of advisors. You never know when God will decide to act or we have a repeat of 2020.
A few things that may be of interest:
- Private Equity Series Session II – An online event (4/22/21; 9-10:30am) focused on issues surrounding the sale of a family business to private equity firms. Thanks to Sean O’Dowd from Silvercrest Asset Management Group LLC for sharing.
- Updated CDC Guidance, Domestic and International Travel – Thanks or Tedd Kochman from Littler for keeping us in the loop on these and labor-related issues.
- Employee Retention Tax Credit Essentials – NFIB Webinar on 4/14/21 from 12-1pm.
- New COBRA Mandate for Business – What You Need To Know – a good overview of this new requirement under the American Rescue Plan Act from Drucker & Scaccetti (aka the Tax Warriors); Thanks to Eric Elmore and Diane DeCesare for sending us this information.
As always, please don’t hesitate to email myself (firstname.lastname@example.org), Andy Miller (email@example.com), Christian Miller (firstname.lastname@example.org), Erik Spurlin (email@example.com) or anyone in our office with questions or comments.