Recently my team has been investigating interpretations of force majeure and it's implications to Business Continuity. Specifically, could this have a major impact on our ability to justify recovery solutions.
I was refered to a powerpoint presentation that included the following bullet point:
" Common Law Requirements - "Force Majeure" exculpatory clauses usually cover events beyond a party's reasonable control.
However, business or operational continuity capability is easily obtainable. Downtime due to a "disaster" is controllable, and so, the clauses
do not work in these cases."
Tie the disaster recovery plan into the force majeure clause. The force majeure (or “greater force”) clause excuses the vendor from performance in the event of a major disaster. But if the vendor is unable to perform due to a force majeure event, the vendor should be obligated to then switch to the disaster recovery site to provide services.
http://www.drj.com/articles/spr03/1602-06.html
“Force majeure” exculpatory clauses, for instance, might not be so exculpatory in the case of data center disasters. Why? Because these clauses usually cover events beyond a party’s reasonable control. Because disaster recovery capability is easily obtainable, downtime due to a computer disaster is controllable, and so the clauses do not work in these cases.
http://www.drj.com/new2dr/w2_022.htm
If you have force majeur in your contracts it is important to ensure the correct interpretation of this clause and it's legal liabilities.
Hope all your diasters are planned today.
Regards,
Lori