Fill and Sign the Sample Force Majeure Clausespublic Private Partnership Form

§ 11.08 Putting It All Toge ther Page 355 [1]—Long-Form Provision Section X.01. Force Maj eure Event. (a) Definition. As used in this Agreement, a “ Force Majeure Event” means any act or event, whether foreseen or unforeseen, that meets all three of the following tests: (i) The act or event prevents a party (the “Nonperforming Party”), in whole or in part, from (A) performing its obligations under this Agreement; or (B) satisfying any conditions to the Performing Party’s obligations under this Agreement. (ii) The act or event is beyond the reasonable control of and not the fault of the Nonperforming Party. (iii) The Nonperforming Party has been unable to avoid or overcome the act or event by the exercise of due diligence. (b) Acts and Events Included in the Definition of Force Majeure Event. (i) Included Acts and Events. In furtherance of the definition of Force Majeure Event and not in limitation of that definition, each of the following acts and events is deemed to meet the requirements of Section X.01(a) and to be a Force Majeure Event: war, flood, lightning, drought, earthquake, fire, volcanic eruption, landslide, hurricane, cyclone, typhoon, tornado, explosion, civil disturbance, act of God or the public enemy, terrorist act, military action, epidemic, famine or plague, shipwreck, action of a court or public authority, or strike, work-to-rule action, go-slow or similar labor difficulty, each on an industry-wide, region-wide or nationwide basis. (ii) Other Included Acts and Events. The list of Force Majeure Events set forth in subsection (i) is not exhaustive, and the principle of ejusdem generis is not to be applied in determining whether a particular act or event qualifies as a Force Majeure Event under Section X.01(a). (c) Exclusions. Despite the provisions of Section X.01(a) and (b), a Force Majeure Event does not include economic hardship, changes in market conditions, insufficiency of funds, unavailability of equipment or supplies or, except as specifically set forth in subsection (b), strikes, work-to-rule actions, go-slows or similar labor difficulties. Section X.02. Suspensio n of Performance. Subject to the provisions of Sections X.03 and X.04, if a Force Majeure Event occurs, the Nonperforming Party is excused from (a) whatever performance is prevented by the Force Majeure Event to the extent so prevented (a “Suspension of Performance”); and (b) satisfying whatever conditions precedent to the Performing Party’s obligations that cannot be satisfied, to the extent they cannot be satisfied (a “Suspension of Performance”). Despite the previous sentence, no obligation by either the Performing Party or the Nonperforming Party to make any payment required under this Agreement is excused as a result of a Force Majeure Event. Section X.03. Ob ligations o f the Nonperforming Party. (a) Written Reports. (i) Upon Occurrence of a Force Majeure Event. No later than two working days after becoming aware of the occurrence of a Force Majeure Event, the Nonperforming Party shall furnish the Performing Party with a written report describing the particulars of the occurrence, including an estimate of its expected duration and probable impact on the performance of the Nonperforming Party’s obligations under this Agreement. (ii) During the Continuation of a Force Majeure Event. During the continuation of the Force Majeure Event, the Nonperforming Party shall furnish timely, regular written reports, updating the information required by Section X.03(a)(i) and providing any other information that the Performing Party reasonably requests. (b) Other Obligations. During the continuation of the Force Majeure Event, the Nonperforming Party shall (i) exercise commercially reasonable efforts to mitigate or limit damages to the Performing Party; (ii) exercise commercially reasonable due diligence to overcome the Force Majeure Event; (iii) to the extent it is able, continue to perform its obligations under this Agreement; and (iv) cause the Suspension of Performance to be of no greater scope and no longer duration than the Force Majeure Event requires. Section X.04. Cond itions Precedent. (a) Section X.03(a)(i) Covena nt. The Nonperforming Party’s performance of the covenant set forth in Section X.03(a)(i) is a condition precedent to its initial Suspension of Performance. If the covenant is performed, the Suspension of Performance is deemed to have commenced on the date the Force Majeure Event occurred. (b) Section X.03(a)(ii) and Sec tion X.03(b) Covenants. During the continuation of the Force Majeure Event, the Nonperforming Party’s performance of the covenants set forth in Section X.03(a)(ii) and Section X.03(b) are conditions precedent to its continued Suspension of Performance. Section X.05. Resump tion of Performance. When the Nonperforming Party is able to (a) resume performance of its obligations under this Agreement, or (b) satisfy the conditions precedent to the Performing Party’s obligations, it shall immediately give the Performing Party written notice to that effect and shall resume performance under this Agreement no later than two working days after the notice is delivered. Section X.06. Disputes. The parties shall negotiate in good faith and attempt to resolve any dispute between the parties as to whether a Force Majeure Event has occurred, or as to whether a Force Majeure Event has prevented the Nonperforming Party, in whole or in part, from performing any obligation or satisfying any condition under this Agreement. If the parties are unable to resolve the dispute, they shall submit the dispute to arbitration, in which event the burden of proof as to whether a Force Majeure Event has occurred or as to whether the Force Majeure Event has prevented performance is upon the Nonperforming Party. Section X.07. Terminat ion. If the Suspension of Performance continues for a period of more than twelve consecutive months as a result of a Force Majeure Event, either party is entitled to terminate this Agreement by giving a notice to the other party pursuant to the notice provisions of this Agreement. Section X.08. Exclusive Remedy. The relief offered by this force majeure provision is the exclusive remedy available to the Nonperforming Party with respect to a Force Majeure Event, and the parties waive the protections of U.C.C. § 2-615 and the common law defenses of impossibility and impracticability with respect to the Force Majeure Events and any event or act that might be deemed a force majeure event under the common law. Page 355 [2]—Short-Form Provision [Insert the follo wing definitions into the de finitions article.] “ Force Majeure Event” means any act or event, whether foreseen or unforeseen, that meets all three of the following tests: (a) The act or event prevents a party (the “Nonperforming Party”), in whole or in part, from (i) performing its obligations under this Agreement; or (ii) satisfying any conditions to the Performing Party’s obligations under this Agreement. (b) The act or event is beyond the reasonable control of and not the fault of the Nonperforming Party. (c) The Nonperforming Party has been unable to avoid or overcome the act or event by the exercise of due diligence. Despite the preceding definition of a Force Majeure Event, a Force Majeure Event excludes economic hardship, changes in market conditions or insufficiency of funds. “Nonperforming Party” has the meaning assigned in the definition of Force Majeure Event. “Performing Party” has the meaning assigned in the definition of Force Majeure Event. The following are the subsections of the Force Majeure Event Section: (a) Suspension of Performance. If a Force Majeure Event occurs, the Nonperforming Party is excused from (i) whatever performance is prevented by the Force Majeure Event to the extent prevented; and (ii) satisfying whatever conditions precedent to the Performing Party’s obligations that cannot be satisfied, to the extent they cannot be satisfied. Despite the preceding sentence, a Force Majeure Event does not excuse any obligation by either the Performing Party or the Nonperforming Party to make any payment required under this Agreement. (b) Resumption of Performance. When the Nonperforming Party is able to (i) resume performance of its obligations under this Agreement, or (ii) satisfy the conditions precedent to the Performing Party’s obligations, it shall immediately give the Performing Party written notice to that effect and shall resume performance under this Agreement no later than two working days after the notice is delivered. (c) Exclusive Remedy. The relief offered by this Force Majeure provision is the exclusive remedy available to the Nonperforming Party with respect to a Force Majeure Event.