Failure to act clause: Copy, customize, and use Instantly
Introduction
A failure to act clause explains what happens when a party does not take a required action under the agreement. It can clarify that delays in enforcement do not waive rights, set consequences for inaction, or allocate risk when one party fails to respond, deliver, or fulfill a duty. This clause helps maintain accountability and prevents misunderstandings if one party is silent or inactive during the contract term.
Below are templates for failure to act clauses tailored to different scenarios. Copy, customize, and insert them into your agreement.
No waiver from inaction clause
This version clarifies that failing to enforce rights does not mean they are waived.
The failure of either party to enforce any provision of this agreement or to exercise any right or remedy shall not be deemed a waiver of such provision, right, or remedy, nor shall it prevent enforcement at a later time.
Cure period failure clause
This version addresses what happens if no corrective action is taken within a cure period.
If a party fails to take corrective action within [X] days of receiving written notice of breach, the non-breaching party may terminate the agreement or pursue other available remedies without further notice.
Silence as non-acceptance clause
This version clarifies that silence is not agreement.
The failure of a party to respond to a communication, request, or proposal shall not be deemed acceptance, approval, or consent, unless expressly stated otherwise in this agreement.
Consequences of failure to act clause
This version outlines specific consequences for not performing a required action.
If a party fails to perform any required action within the timeframe specified in this agreement, it shall be deemed a material breach and the non-breaching party may seek damages, termination, or other remedies as provided herein.
Conditional obligation clause
This version states that one party’s obligation is dependent on the other party acting.
A party’s obligation to perform under this agreement is conditioned on the other party taking all necessary steps within its control. If the other party fails to act, the first party shall not be held liable for resulting delays or failures in performance.
Repeated failure clause
This version addresses repeated failures to act over time.
Repeated failure by a party to perform its obligations under this agreement, even if not individually material, shall be considered a material breach if such inaction substantially impairs the value of the agreement to the other party.
Failure to deliver notice clause
This version addresses the impact of not sending required notices.
If a party fails to deliver notice as required under this agreement, it shall not affect the validity of the underlying right, but the party may be liable for any damages caused by the delay or omission.
Failure to act as estoppel clause
This version clarifies that inaction does not prevent later enforcement.
A party’s failure to take action in response to a breach or delay shall not operate as an estoppel or limit that party’s right to enforce any provision of this agreement at a later time.
Default by omission clause
This version considers inaction as a form of default.
If a party fails to perform any required act under this agreement without reasonable cause, such omission shall be treated as a default subject to the remedies provided herein.
Failure to object clause
This version explains the consequences of not raising an objection.
If a party does not object to a proposed action or decision within [X] days of receipt, it shall not be deemed consent or approval unless otherwise stated in this agreement.
Failure to escalate clause
This version applies when a party does not follow the escalation process.
If a party fails to escalate a dispute or unresolved issue in accordance with the procedures set forth herein, it shall forfeit the right to pursue that issue further until the escalation process is properly initiated.
Conditional termination for failure to act clause
This version allows termination based on inaction.
If a party fails to take a required action under this agreement within [X] days after receiving written notice, the other party may terminate this agreement without further obligation.
No implied obligations from inaction clause
This version prevents obligations from arising due to silence.
No obligations or responsibilities shall arise from a party’s failure to respond or act unless expressly provided in this agreement.
Inaction under time-sensitive obligations clause
This version addresses inaction when deadlines matter.
If a party fails to act within a time-sensitive period specified in this agreement, the opportunity to perform that obligation may be forfeited at the sole discretion of the other party.
Failure to approve deliverables clause
This version addresses silence on deliverables.
If a party fails to approve or reject deliverables within [X] days of receipt, the deliverables shall be deemed accepted unless otherwise agreed in writing.
Right to enforce despite inaction clause
This version reinforces future enforcement rights.
A party’s decision not to enforce any provision immediately shall not affect its right to enforce such provision or any other provision at any time during the term of this agreement.
Inaction in response to dispute clause
This version addresses failure to respond in dispute resolution.
If a party fails to respond to a dispute notice within [X] days, the matter may proceed to the next dispute resolution step without further input from the non-responsive party.
Loss of remedy from failure to act clause
This version allows a time-limited window for action.
A party must exercise any right or remedy under this agreement within [X] days of discovering a breach. Failure to do so within that period may result in waiver of the right to seek such remedy.
Performance dependency clause
This version excuses performance based on other party’s inaction.
A party shall not be liable for failure to perform where such performance was dependent on the other party’s timely action or cooperation, and such action was not taken.
Suspension due to failure to act clause
This version allows suspension of performance.
If one party fails to act as required, the other party may suspend its own obligations until the inaction is resolved, without being considered in breach of this agreement.
Duty to mitigate inaction clause
This version creates a duty to mitigate harm caused by the other party’s inaction.
If a party is harmed by the other party’s failure to act, it must take reasonable steps to mitigate the damage. Failure to do so may limit its right to recover damages.
No inference from delay clause
This version prevents assumptions based on delay.
A party’s delay in exercising a right or taking action under this agreement shall not be interpreted as a waiver, approval, or modification of the terms herein.
Materiality of inaction clause
This version clarifies when inaction becomes a breach.
Not all failures to act shall constitute breach. Only failures that materially impair the agreement or cause harm to the other party will trigger remedies under this agreement.
Failure to participate clause
This version covers failure to join required meetings or processes.
If a party fails to participate in required meetings, reviews, or collaboration efforts outlined in this agreement, the other party may proceed without further obligation to consult or coordinate.
Failure to act in good faith clause
This version addresses willful inaction.
If a party deliberately avoids taking a required action in bad faith, such conduct shall be treated as a breach regardless of whether the act was expressly time-bound.
Implied default clause
This version considers ongoing inaction as a default.
If a party fails to take any material action required under this agreement for [X] consecutive days, such failure shall constitute an event of default without the need for further notice.
Service level failure to act clause
This version is for SLAs and performance-based contracts.
If a party fails to respond or act within the specified service level response times, the affected party may be entitled to service credits or other remedies outlined in this agreement.
Lapse in obligation clause
This version allows obligations to lapse after inaction.
If a party does not respond to a request, proposal, or decision within [X] days, the related obligation shall lapse unless extended by mutual written agreement.
Failure to submit reports clause
This version applies when one party fails to deliver required reports.
Failure to submit required reports or documentation under this agreement within the designated timeframe shall result in a breach unless excused by written consent of the other party.
No automatic consent clause
This version prevents automatic consent from silence.
Silence or failure to respond shall not be construed as consent or agreement to any proposed change, amendment, or waiver of this agreement.
Non-reliance on inaction clause
This version prevents reliance on past tolerance.
A party may not rely on prior instances where the other party failed to act, as justification for continued or future non-performance.
Delay not a breach clause
This version distinguishes delay from complete failure.
Delay in performance, unless unreasonable or expressly prohibited, shall not be considered a failure to act or a breach under this agreement.
Mitigation required after inaction clause
This version imposes a duty to act after prior inaction.
If a party previously failed to act, it must take reasonable steps to mitigate any resulting harm or risk going forward.
Notification of inaction clause
This version requires written notice before escalation.
Before asserting breach due to a failure to act, the affected party must first provide written notice and allow at least [X] days for the issue to be corrected.
Failure to act with notice clause
This version distinguishes inaction with and without notice.
A party’s failure to act after receiving written notice of required performance shall be deemed a material breach.
Administrative inaction clause
This version applies to internal delays in processing.
Administrative delays in issuing approvals or processing documents shall not be excused if they prevent timely performance under this agreement.
Passive breach clause
This version defines inaction as passive breach.
A party who fails to perform a duty under this agreement, even without active resistance, shall be considered in passive breach.
Third-party inaction clause
This version allocates responsibility when third parties fail to act.
A party shall remain responsible for its obligations under this agreement even if a third party under its control fails to act, unless the agreement expressly assigns that risk.
Inaction on urgent matters clause
This version addresses time-critical failures.
Failure to act within [X] hours in response to an urgent matter affecting health, safety, or significant loss shall constitute a breach.
Failure to deliver goods clause
This version focuses on non-delivery.
Failure to deliver goods as scheduled without written explanation shall be treated as a failure to act, giving rise to remedies under this agreement.
Failure to approve changes clause
This version addresses stalling on change requests.
If a party fails to approve or reject a change request within [X] business days, the change shall be deemed denied unless otherwise agreed in writing.
No precedent from inaction clause
This version ensures one instance of inaction doesn’t bind future cases.
A party’s failure to act on a specific occasion shall not set a precedent or modify the rights and obligations under this agreement.
Delayed enforcement clause
This version explains delayed enforcement rights.
A party may choose to delay enforcement of a provision without waiving the right to enforce it at a later date.
Mutual inaction clause
This version addresses situations where both parties fail to act.
If both parties fail to perform interdependent actions under this agreement, neither party shall be liable until performance is re-initiated in good faith.
Missed deadline clause
This version treats missed deadlines as inaction.
Missing a deadline for any required performance without prior written extension shall constitute a failure to act.
Internal approval failure clause
This version excuses performance if internal approvals are not obtained.
A party shall not be liable for failure to act where internal approvals were required and were not granted, provided timely efforts were made to obtain such approvals.
Optional escalation for inaction clause
This version gives the affected party discretion to escalate.
In the event of inaction by the other party, the affected party may escalate the issue in accordance with the procedures in this agreement or take independent action if permitted.
Progressive penalties clause
This version imposes increasing consequences for repeated inaction.
Each successive failure to act shall result in progressively increasing penalties, including monetary damages, reduced privileges, or termination rights.
Inaction during review clause
This version covers failure to provide feedback.
If a party fails to provide required feedback during a review period, the pending item shall be deemed approved or accepted after [X] days.
Reinstatement after failure clause
This version allows limited reinstatement of rights.
A party that failed to act may have its rights reinstated upon cure and written agreement of the other party, but no waiver shall be implied.
Notification window clause
This version imposes a time limit to act after notice.
Upon receiving notice of an obligation or issue, a party shall act within [X] days or be considered in breach due to failure to act.
Standby clause
This version applies when a party must remain ready to act.
A party required to remain on standby for action shall not be considered compliant if it fails to respond within the agreed timeframe when activation is required.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.