Common use of FORCE MAJEURE AND EXCUSABLE DELAY Clause in Contracts

FORCE MAJEURE AND EXCUSABLE DELAY. The Parties hereto, respectively, shall not be in default of this Agreement if either is unable to fulfill or is delayed in fulfilling, any of its respective obligations hereunder, or is prevented or delayed from fulfilling its obligations, in spite of its employment of best efforts and due diligence, as a result of natural disasters, unusually severe weather, transportation delays, catastrophic events, casualties to persons or properties, war, governmental preemption in a national emergency, enactment of law, rule or regulation or change in existing laws, rules or national emergency, enactment of law, rule or regulation or change in existing laws, rules or regulations which prevent or adversely affect any Party's ability to perform its respective obligations under this Agreement, or actions by other persons beyond the exclusive control of the Party claiming hindrance or delay, including employees of the other Party, except for the Customer’s obligation to make payments when due. If a Party believes that a hindrance or delay has occurred, it shall give prompt written notice to the other Party of the nature of such hindrance or delay, its effect upon such Party's performance under this Agreement, the action needed to avoid the continuation of such hindrance or delay, and the adverse effects that such hindrance or delay then has or may have in the future on such Party's performance. Notwithstanding notification of a claim of hindrance or delay by one Party, such request shall not affect, impair or excuse the other Party hereto from the performance of its obligations hereunder unless its performance is impossible, impractical or unduly burdensome or expensive in accordance with the terms of this Agreement as set forth in Section 23(c), above, due to unforeseen conditions as determined by the agreement of the Parties including subsurface conditions, or cannot effectively be accomplished without the cooperation of the Party claiming delay or hindrance. The occurrence of such a hindrance or delay may constitute a change in the scope of service, and may result in the need to adjust the Contract Cost in accordance with the terms of this Agreement. In that event, the Agreement must be amended and approved in accordance with Section 19(b) herein. Any decision by the Customer to close or change the use of the facilities or ECMs at the Property shall not constitute a Force Majeure excusing Customer's performance under this Agreement.