不可抗力条款（Force Majeure）
2011-08-26 08:36阅读：
不可抗力条款（Force
Majeure）
If a contract cannot be
performed owing to force Majeure, all or part of the obligations
shall be relieved, depending on the impact of the force Majeure,
unless otherwise stipulated in the laws. If force Majeure occurs
after a party delays the performance, it shall not be relieved of
its obligations.
因不可抗力不能履行合同的，根据不可抗力的影响，部分或全部免除责任，但法律另有规定的除外。当事人迟延履行后发生不可抗力的，不能免除责任。
A party is not liable for a
failure to perform any of its obligations if he proves that the
failure was due to an impediment beyond his control and that he
could not reasonably be expected to have taken the impediment into
account at the time of the conclusion of the contract or to have
avoided or overcome it or its cons
equences.
如果当事人一方能证明，其不履行合同义务是由于某种非他所能控制的障碍，而且对于这种障碍，没有理由预期他在订立合同时能考虑到或能避免或克服它或它的后果，则该当事人不负责任。
In case of Force Majeure such
as war, serious fire, flood, typhoon and earthquake or other events
of Force Majeure, the Seller shall not be held responsible for
delay in delivery or non delivery of the contracted
goods.
由于战争或严重的火灾、水灾、台风和地震，以及其他不可抗力的原因，致使卖方不能在合同规定期限内交货或不能交货，卖方不负责任。
(1) If either of the
Contracting parties be prevented from executing the contract by
such events of Force Majeure as war, serious flood, fire, typhoon
and earthquake, or other events agreed upon between both parties,
the term for the execution of the contract shall be extended for a
period equivalent to the effect of such events.
(2) The prevented party shall
notify the other party of the occurrence of the Force Majeure event
by telex or E-mail within the shortest possible time and shall send
by registered E-mail, within 14 days thereafter, to the other party
a certificate issued by the relevant competent authorities for
confirmation by the other party.
(3) Should the Force Majeure
event last for more than one hundred and twenty consecutive days,
both parties shall, through consultations, decide whether to
terminate the contract or to exempt the part of obligations for
implementation of the contract according to the effects of events
on the performance of the contract.
（1）若缔约双方中之任何一方因战争、严重水灾、火灾、台风、地震以及经双方认可的其他此等不可抗力事件阻碍而无法按期履行合同，应当延长合同的履行期限，延长的期限相当于事故所影响的时间。
（2）受不可抗力事件影响的一方应尽快将不可抗力事件发生的情况以电传或电子邮件的方式通知对方，并于14天内以航空挂号信将有关当局出具的证明文件提交另一方确认。
（3）如不可抗力事件持续120天以上，双方应当通过协商方式，根据事件对履约的影响程度，确定是否终止合同或者是否部分地免除合同的履行义务。
完备的不可抗力条款
Section X. 01. Force Majeure
Event.
(a) Definition of Force Majeure
Event. 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 it, 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, lighting, 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), 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), strike,
work-to-rule actions, go-slow or similar labor
difficulties.
Sections X.02. Suspension 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 Non-performing
Party to make any payment required under this Agreement is excused
as a result of a Force Majeure Event.
Section X.03. Obligations of
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 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. Conditions
Precedent.
(a) Section X.03 (a)(i)
Covenant. 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)(i) and
Section X.03 (b) Convenants. During the continuation of the Force
Majeure Event, the Nonperforming Party’s performance of the
convenants 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. Resumption 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.
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.
Termination
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.
