Caution

Material Breach Undefined

"Material breach" isn't defined; the brand can invoke breach termination for subjective issues.

Show it
Look in the termination section for phrases like "material breach", "any breach", "as determined by the Brand", "in the Brand's sole discretion", or "deemed material by the Brand". The absence of an enumerated list of what constitutes material breach is a key signal.
Decode it
Subjective material-breach standard transfers termination control to the brand. Where "material" is determined by brand judgement, any creator performance issue can be characterised as material breach and trigger termination. Where breach-termination triggers fee forfeiture or clawback, the subjective standard plus financial consequence creates a discretionary revenue-reduction mechanism.
Fix it
Push for three protections: enumerate material breach triggers with specific events (non-payment for 30 days, failure to deliver, breach of confidentiality, breach of stated warranties), add a notice-and-cure mechanism (14-30 day cure period), and limit breach termination consequences to forward-looking (no clawback of paid fees where breach was inadvertent).

What it means

This contract permits termination on "material breach" without defining what counts as material. The brand can invoke material-breach termination for issues a reasonable standard would not support, a day's late delivery, minor revision concerns, routine drafting issues. Well-drafted clauses define the trigger objectively and add a notice-and-cure step.

A loose material breach test can let the brand decide what counts as serious enough to end the deal. Where "material" is determined by brand judgement, any creator performance issue can be characterised as material breach.

What to check before you sign

  • ·Is material breach defined with specific trigger events, or left subjective?
  • ·Is there a notice-and-cure mechanism, written notice plus 14-30 day cure period?
  • ·Does breach termination trigger fee forfeiture, clawback, or just engagement end?
  • ·Is "material" judged objectively (reasonable standard) or subjectively (brand discretion)?
  • ·Are routine performance issues (single late delivery, minor revisions) excluded?
  • ·Is the creator-side breach standard equivalent to brand-side?

How to fix it

  • Define material breach with specific trigger events. Single most important fix.

  • Require written notice and 14-30 day cure period before breach termination takes effect.

  • Replace "in the brand's discretion" with objective tests (reasonable person standard, defined threshold).

  • Limit breach termination consequences to future obligations only, no clawback of paid fees, no damages beyond actual loss.

Negotiating it

A good opening

"Could we define material breach with specific triggers (non-payment for 30 days, failure to deliver, breach of confidentiality), add a 21-day notice-and-cure step, and use an objective test rather than your discretion? "

When to walk away

Undefined material breach standard plus brand-discretion judgement plus no notice-and-cure plus fee forfeiture consequence plus asymmetric structure is a strong walk-away signal.

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Educational guidance, not legal advice. For high-value or complex deals, get independent legal advice from a qualified professional.