Common use of No Liability for Force Majeure Clause in Contracts

No Liability for Force Majeure. No Party shall be liable to any other Party for breach of this Agreement as a result of a failure to perform or for delay in performance of any provision of this Agreement if, based on evidence provided by the non-performing Party to the other Parties, such performance is delayed or prevented by Force Majeure. In the event of an enforcement action, the non-performing Party bears the burden of proving by a preponderance of the evidence the existence of Force Majeure, including the absence of negligence. The term “Force Majeure” means any cause reasonably beyond the performing Party’s control, which could not be avoided with the exercise of due care, and which occurs without the fault or negligence of the Party whose performance is affected by the Force Majeure. Force Majeure events may be unforeseen, foreseen, foreseeable, or unforeseeable, including without limitation natural events; labor or civil disruption; breakdown or failure of Project works not caused by failure to properly design, construct, operate, or maintain; new regulations or laws that are applicable to the Project; orders of any court or agency having jurisdiction over the Party’s actions; delay in a FERC order becoming final; or delay in issuance of any required permit. Ecology is reviewing the use of Force Majeure in future agreements and this provision should not be viewed as precedent for other future agreements.