IACCM Contract Management Forum

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2020-04-13 14:07:05

New contract in covid in technology market place

Since Covid is now a known event and we cannot rely on FM clause.What language or wording should we use in technology contracts and SOW's to cover the risk from service provider's point of view.
 •  TRG Law Limited  •   2020-04-15 15:44:14
At least under English law, what qualifies as FM depends only upon the wording of the relevant contract clause. Just because a situation such as Covid is known at the time of contracting does not I believe, of itself, prevent a party relying on an appropriate clause providing you can bring yourself within the wording. Of course, if the relevant clause limits FM to matters 'not reasonably foreseeable' then that would be another matter but many clauses do not do so.
 •  Schneider Electric  •   2020-05-14 08:35:14
Good question. I am currently in this situation whereby I am negotiating another new similar project with the same customer. Sue to the similarities, we are merely updating the T&Cs from the older (now almost complete contract). They are permitting us to make some minor adjustments to the terms of this new contract. I see the potential re-occurrence of Covid-19 in the fall as no longer being 'unforeseen' so may be an issue relying on FM if required eg. if we are delayed as a result, for this reason, I am asking for 'Covid-19' to be named as one of the causes under the Contract ie. added to the list of FM events named in the contract. My colleague in legal is helping me to pull the wording together atm. This is my proposal for dealing with this potential risk.
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