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selected contract provisions

my goal is to periodically analyze a provision in an editorial or commercial contract.
please feel free to submit provisions for my review.


termination provision

Publisher's contract contained this TERMINATION provision:

 "If Freelancer breaches this agreement or fails to fulfill Freelancer's responsibilities hereunder, Publication may, in addition to its other remedies, immediately terminate this agreement and/or cease making payments. The Grant of Rights, Warranty, Confidentiality, Subsequent Grant of Rights and Miscellaneous provisions shall survive any termination."

I would strike this entire provision.

 There was no companion provision addressing Freelancer's rights if Publisher breached the Agreement, which violates my personal tit-for-tat rule. And the provision sucks.


 (1) The first sentence of the provision permits the Publisher to:

 (a) be the judge of whether or not Freelancer was guilty of a breach or failing to "fulfill Freelancer's responsibilities". (I don't know what the Publisher intended to cover by including the words "fulfill Freelancer's responsibilities" which would be enough reason for me to strike that language.)
 (b) terminate the contract for any breach - major or minor - without proof of damages caused by the breach;
 (c) fail to pay Freelancer's invoice (including expenses) or stop future payments on Freelancer's invoice without proof of damages caused by a breach.
Under California law, whether a particular breach is material is usually a question of fact that must be decided by a judge or jury. After forming a contract, the parties must "perform", i.e. the Freelancer fulfills his/her assignment and the Client pays. In the course of the contract, one or both parties may breach, or fail to honor, one or more terms in the contract. If a breach occurs, contrary to the provision quoted above, damages are not presumed. The complaining party must establish a connection between the breach and the damages sought to be paid. However, this Publisher is asking Freelancers to contract away their legal rights.

 (2) The second sentence of the provision is almost worse than the first sentence. In effect, the Publisher walks away with everything. Freelancer's usage license, which was defined in the Grant of Rights section, remains in effect. Yet Freelancer, having allegedly breached the agreement, however minor, may not be compensated for his/her creative work or usage fees.

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