my goal is to periodically analyze
a provision in an editorial or commercial contract.
feel free to submit provisions for my review.
Publisher's contract contained this TERMINATION
| "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:
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.)
terminate the contract for any breach - major or minor - without
proof of damages caused by the breach;
fail to pay Freelancer's invoice (including expenses) or stop
future payments on Freelancer's invoice without proof of damages
caused by a breach.
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