Force Majeure

What is force majeure?

Force majeure (French for "superior force") is a clause that excuses a party from its duties when something outside its control stops it from performing. Classic examples are natural disasters, war and government orders. While the event lasts, the affected party is not in breach.

In SaaS contracts the clause mostly protects the vendor, since the vendor is the one delivering a service. Your main duty is to pay, and payment is often left out of the excuse. HubSpot (section 12.2), Atlassian (section 20.10) and AWS (section 11.3) all exclude payment obligations from their force majeure clauses.

What it looks like in a vendor's terms

A typical clause reads like this:

Neither party is liable for any delay or failure to perform caused by events beyond its reasonable control, including natural disasters, war, terrorism, labor disputes, government action, and internet or utility outages. This does not excuse any obligation to pay fees.

• Beyond its reasonable control: the core test. The list that follows gives examples.
• Internet or utility outages: can cover failures at the vendor's own suppliers.
• Not excuse fees: you keep paying even if the service stops.

HubSpot's clause names "electrical, internet, or telecommunication outage" among its events.

Why it matters to you

Two modern risks test the clause: cyberattacks and cloud outages. The documents we read handle them differently:

• HubSpot lists sabotage and internet outages, plus a catch-all for events outside reasonable control, but does not name cyberattacks.
• Salesforce's MSA has no separate force majeure clause. Its uptime promise (section 2.1) excludes circumstances beyond its reasonable control, and the examples include denial-of-service attacks.
• Atlassian's clause covers events beyond reasonable control that happen "without fault or negligence," which leaves room to argue when a vendor's own weak security played a part.

Force majeure also shrinks your other protections. HubSpot excludes force majeure time from its uptime calculation in its Product Specific Terms, so an outage the vendor calls force majeure may earn no service credits. If the vendor's own cloud host fails, check whether that counts as outside its control, because it chose that host as a subprocessor.

What to check

• Read the list of events. Are cyberattacks, cloud provider failures or vendor-side outages included?
• Look for a "without fault or negligence" condition, so poor security cannot be excused.
• Check that the vendor must still follow its business continuity and disaster recovery plan during the event.
• Ask for a right to terminate with a refund if the event lasts beyond a set number of days.
• Check whether force majeure time is excluded from SLA downtime.

How Venpo helps

Venpo monitors your vendors' terms and SLAs and emails you when the force majeure clause or SLA exclusions change, for example when a new kind of event is added to the excused list. You get a plain-English summary and a change history per vendor.