TSA Pre-Signing Review
Keep the exit date under your control.
We narrow force majeure and protect exit assistance so a crisis cannot become a delay. Fixed-fee proposal in 48 hours. The first conversation is always free.
The force majeure clause excuses a party that cannot perform because of events beyond its control, and a buyer that accepts a loose draft can watch the seller use it to delay the very services a separation depends on. Careful TSA negotiation keeps the clause narrow, the exit date protected, and the buyer free to move on. The seller wants broad relief from performance. The buyer wants relief confined to genuine events that no plan could overcome.
A force majeure clause suspends a party obligation to perform when a defined event beyond its reasonable control prevents performance. In a TSA this usually protects the seller, the party delivering the service, when something genuinely outside its control stops it from delivering. The clause is meant for real disruption, not ordinary difficulty.
The buyer interest is to keep the clause confined to genuine events. A seller that can claim force majeure for routine problems, supplier issues it could have planned around, or its own resourcing decisions gains an excuse to underperform during the period when the buyer is most dependent and least able to switch.
The clause also defines what relief follows. Typically the affected party is excused for as long as the event continues and must resume when it passes, rather than escaping the obligation entirely. The buyer ensures the relief is a temporary suspension tied to a real event, not a permanent release.
A buyer approaches the clause by narrowing the trigger and pairing it with duties to notify, to mitigate, and to resume, so force majeure remains a safety valve for genuine crises rather than a routine excuse.
The definition is the heart of the clause. A buyer favours a closed list of qualifying events, such as natural disaster, war, and government action, over an open ended phrase that sweeps in anything the seller calls beyond its control. The broader the wording, the easier it is to invoke for things the seller could have managed.
Some categories deserve particular scrutiny. Labour disputes within the seller own workforce, failures of the seller subcontractors, and inability to obtain staff or materials are often pushed into the definition, yet these are frequently within the seller control or planning. The buyer resists including events the seller is best placed to prevent.
The standard for invocation matters too. The event should genuinely prevent performance, not merely make it more expensive or less convenient, and it should be one the seller could not have avoided through reasonable planning. A buyer sets that bar deliberately rather than accepting a low threshold.
A tightly drawn definition is the single most effective protection, because every other part of the clause flows from what counts as force majeure in the first place.
Force majeure should not excuse payment. A buyer that cannot use a service for a genuine reason expects relief from paying for it, but a seller that cannot deliver should not also be relieved of refunding or crediting amounts that buy nothing. The buyer ensures the clause does not let the seller charge for services force majeure has stopped it providing.
The clause also defines what continues during a force majeure event. Obligations of confidentiality, data protection, and security do not pause because a disruption occurs, and the buyer keeps these duties expressly outside the relief so the seller cannot treat a crisis as a reason to drop its protective obligations.
Exit assistance is the obligation the buyer most wants preserved. If a force majeure event coincides with the planned exit, the buyer needs the migration support to continue or resume promptly, because a separation that stalls mid transfer is more dangerous than one that never started. The clause should not let force majeure freeze the exit indefinitely.
By carving payment, confidentiality, security, and exit assistance out of the relief, the buyer keeps the protections it needs alive even while genuine performance is suspended.
A workable clause requires the affected party to give prompt notice of the event, describe its expected effect and duration, and update the other party as the situation develops. The buyer wants this visibility so it can plan around the disruption rather than learning of it only when a service quietly fails.
Mitigation is the obligation that prevents abuse. The seller should be required to take reasonable steps to work around the event and to resume performance as soon as it can, rather than treating force majeure as permission to stop trying. The buyer makes mitigation an express duty, not an assumed courtesy.
A prolonged event needs an exit route. If force majeure continues beyond a defined period, the buyer wants the right to terminate the affected services, or the whole TSA, without penalty, so it is not locked into paying for or waiting on a service that may never resume. The clause sets that period at a length the buyer can actually tolerate.
Notice, mitigation, and a termination right for a long event turn force majeure from an open ended excuse into a controlled mechanism with clear obligations on both sides.
The overriding buyer concern is that force majeure must not become a reason the TSA drifts past its planned end. A clause that suspends the exit date for any claimed disruption can hand the seller a way to extend a service it should be winding down, which is the opposite of what the buyer needs from a separation.
The buyer therefore ties force majeure to the exit plan. It keeps exit assistance outside the relief, sets a clear termination right if an event runs long, and ensures any extension of the TSA timeline is the buyer choice, not an automatic consequence of a seller claim. The exit ramp stays under the buyer control.
As with the cap and the indemnities, this is a pre-signing negotiation. While the deal is live the buyer can shape the definition and the carve-outs, but once signed it is asking the seller to give up an excuse it already holds, with little to offer in return.
A disciplined buyer settles the force majeure clause during a pre-signing review, alongside the cap and the indemnities, so a genuine crisis is covered without giving the seller a routine reason to delay the exit.
It should excuse performance only for genuine events beyond a party reasonable control that actually prevent performance, such as natural disaster, war, or government action. The buyer favours a closed list over open ended wording and resists including events the seller can plan around.
It should not let the seller charge for services it has stopped providing. The buyer ensures the clause relieves it of paying for a service force majeure has interrupted while not relieving the seller of crediting amounts that buy nothing.
Confidentiality, data protection, security, and exit assistance should stay outside the relief. The buyer keeps these alive so a disruption cannot become a reason for the seller to drop its protective duties or stall the migration.
Yes, with the right drafting. The buyer negotiates a right to terminate the affected services or the whole TSA without penalty if a force majeure event continues beyond a defined period, so it is not locked into a service that may never resume.
Termination triggers, notice, and the buyer right to exit early.
Read the article →Where to set the cap, what to exclude, and the carve-outs that matter.
Read the article →Governing scope changes without paying for every adjustment twice.
Read the article →The 90-day governance, IT, finance, HR and procurement separation plan we run on live carve-outs. Get the playbook plus the bi-weekly Day One Letter — short, signal-heavy, buyer-side.
No spam. Unsubscribe in one click. · Read the overview first →
We narrow force majeure and protect exit assistance so a crisis cannot become a delay. Fixed-fee proposal in 48 hours. The first conversation is always free.
Seven buyer-side moves to exit a Transition Services Agreement on time and below budget. The mark-up, the extension-fee curve, exit sequencing, and the 11-month calendar.
The TSA's exit is written into its clauses long before the project starts. This playbook covers the step-down right, liability caps, termination, survival and the language a buyer must place before signature. On a representative carve-out, the seven clauses below are worth more than any signature discount — the missing step-down right alone can lock in $1.4M of avoidable cost.
One tactic, one benchmark, or one pattern from a recent buyer-side engagement. Short. Signal heavy. Free.
Subscribe to The Day One Letter →