A regional bank lost access to its ITSM platform for eleven days after a data-center incident the vendor classed as force majeure. The contract suspended the vendor’s duty to deliver but said nothing about the bank’s duty to pay, and it carried no continuity obligation and no termination trigger. The bank paid in full for a service it could not reach and had no contractual lever to escalate. Every step followed the contract as written. This is the clause that prevents it, edit by edit.
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What does force majeure cover in an ITSM contract?
Force majeure excuses a party from performing when an event genuinely outside its control prevents it: natural disaster, war, widespread infrastructure failure, and similar. In a SaaS ITSM contract the practical question is narrow but expensive: if the vendor cannot deliver the service because of such an event, what happens to your payment, your data access, and your right to leave? A vendor-drafted clause typically protects the vendor’s performance and stays silent on your money, which is exactly the asymmetry to close.
Why is a one-sided force majeure clause a financial risk?
Because it can leave you paying for nothing. If the clause suspends the vendor’s obligation to provide the service but does not suspend your obligation to pay for it, an extended outage becomes a transfer: you fund availability you are not receiving. The single most important edit is symmetry. If force majeure suspends the vendor’s performance, it must suspend or abate your payment for the affected service for the duration. That one change realigns the incentive so the vendor has a reason to restore service quickly rather than shelter behind the clause.
| Vendor-drafted | Buyer-side edit | Effect |
|---|---|---|
| Suspends vendor performance only | Suspends or abates payment for the affected service too | You stop funding a service you cannot use |
| No continuity obligation | Defined RTO, RPO and status-communication duties | Outage handled, not just excused |
| No exit on prolonged events | Termination right if the event exceeds a set window | You are not trapped in a broken service |
| Broad, open list of events | Tightened definition, excludes vendor negligence | Stops ordinary failures being relabeled force majeure |
What continuity obligations should pair with force majeure?
Force majeure decides who is excused; continuity decides what still has to happen. Pair the clause with concrete continuity duties: a defined recovery time objective and recovery point objective, a documented disaster-recovery and backup posture, and a status-communication obligation so you are informed during an incident rather than left guessing. These convert a force majeure event from a blanket excuse into a managed process with measurable commitments. The availability side of this pairs with uptime commitments, covered in uptime and availability commitments, what to hold the vendor to.
When should a prolonged outage let you terminate?
A force majeure event that drags on should not lock you into a service that has stopped working. Negotiate a termination right that triggers if the event continues beyond a defined window, for example a set number of consecutive days, with a clean exit and assistance moving your data out. Without it, "temporary" can become indefinite while you remain liable. The exit and transition mechanics that make this usable are part of the broader clause set in our pillar, the ITSM contract clause library, 40 terms every buyer should know, and the optimization view on what you should still be paying for sits in our license optimization service.
Numbered steps to negotiate force majeure and continuity
- Make it symmetrical. If the vendor’s performance is suspended, your payment for the affected service is suspended or abated too.
- Tighten the definition. Exclude vendor negligence and ordinary operational failures from the force majeure list.
- Attach continuity duties. Bind a defined RTO, RPO, backup posture and incident-communication obligation.
- Add a termination trigger. Secure an exit if the event exceeds a set window, with data-transition assistance.
- Tie to service credits. Ensure the outage still counts toward availability remedies where the cause is within the vendor’s control.
Our contract terms and True Forward guide includes the symmetry and continuity language that keeps a force majeure event from becoming a one-way bill.
What to do next
Read your force majeure clause and answer one question: during a vendor outside-control outage, do you keep paying? If the clause is silent, you do. That is the edit to make at the next renewal, alongside the continuity and termination terms that turn an excuse into a managed obligation. When you want the language drafted by a team that has negotiated these clauses across 500-plus engagements, our contract negotiation service runs it buyer-side on fixed fee or gainshare.
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Frequently asked questions
- What does force majeure cover in an ITSM contract?
- It excuses a party from performing when an event genuinely outside its control prevents it, such as natural disaster or widespread infrastructure failure. The practical question for a buyer is what happens to your payment, data access and exit rights when the vendor invokes it, because vendor-drafted clauses usually protect the vendor's performance and stay silent on your money.
- Why is a one-sided force majeure clause a financial risk?
- Because it can leave you paying for a service you cannot use. If the clause suspends the vendor's obligation to deliver but not your obligation to pay, an extended outage becomes a transfer of value to the vendor. The fix is symmetry: force majeure should suspend or abate your payment for the affected service too.
- What continuity obligations should pair with force majeure?
- A defined recovery time objective and recovery point objective, a documented disaster-recovery and backup posture, and a status-communication duty during incidents. These convert a blanket excuse into a managed process with measurable commitments.
- Should a prolonged outage let you terminate the contract?
- Yes. Negotiate a termination right that triggers if a force majeure event continues beyond a defined window, with a clean exit and data-transition assistance, so a temporary event cannot become an indefinite lock-in while you remain liable.
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