What It Does
A breach analysis turns on how serious the failure is, not just whether one happened. A material breach goes to the core of the bargain, letting you suspend performance, terminate, and sue for the full value of the deal. A minor breach leaves the exchange intact, so you keep performing and recover damages for the shortfall alone.
Fails to deliver, pay, or perform what the contract requires by the date due.
Performs at the wrong standard, quantity, or after the deadline.
Makes a representation or warranty that turns out to be false.
Repudiates in advance (UCC § 2-610), signaling before performance is due that it will not perform.
Breaches the implied covenant of good faith and fair dealing.
Prevents or hinders the other side's own performance.
Terminating over what a court later calls a minor breach can flip you into the breaching party, which is why cure periods and defined termination triggers do so much of the real work.
When You'll See It
Cure Periods: The contract sets a window, commonly measured in days from written notice, during which the breaching party can fix the failure before termination rights attach. Well-drafted cure language separates breaches capable of cure from breaches incapable of cure, since the second category has no reason to wait out a clock.
Termination Triggers: The termination article names which failures allow exit, and the drafting choice sits in whether the trigger reads "material breach," "breach of Section X," or "any breach." Narrower triggers give the counterparty more room to underperform without losing the contract.
Remedies Clauses: These provisions specify what the injured party can collect and how, including liquidated damages amounts, specific performance rights, and sole-and-exclusive-remedy language that forecloses other claims.
Caps and Carve-Outs: Limitation of liability sets the ceiling on breach exposure, and the carve-out list decides which breaches escape the cap. Confidentiality, indemnity, and willful misconduct are common carve-outs, and the negotiation over that list is a negotiation over what a breach is worth.
Events of Default: Credit and supply agreements use a default construct, enumerating the failures that let the lender or supplier accelerate, suspend, or exercise collateral rights.
Examples
T-Mobile US
Amendment to License Purchase Agreement With DISH Network, Section 7.1(a)(v)
Cure-Conditioned Termination
Mutual
2024
"(v) by either Party upon any other material breach by the other Party of its obligations under this Agreement; provided that (i) the breaching Party has not cured such breach within 30 days following written notice of such breach and that the terminating Party is not otherwise in breach of its obligations under this Agreement"
T-Mobile US
Amendment to License Purchase Agreement With DISH Network, Section 7.1(d)
Capped Sole Remedy
One-Sided
2024
"following termination of this Agreement, Purchaser shall be entitled as its sole and exclusive remedy to seek damages against Seller for any uncured material breach of this Agreement by Seller that occurred prior to such termination, up to a maximum amount of damages of $100,000,000 in the aggregate"
CarParts.com
Everest Advisors Consulting Services Agreement
Incurable-Breach Carve-Out
One-Sided
2026
"The Company may terminate the Agreement upon written notice to Everest, if Everest materially breaches the Agreement, and such material breach is incapable of cure, or with respect to a material breach capable of cure, Everest does not cure such material breach within thirty (30) days after receipt of written notice of such breach."
Union Carbide Corporation
Third Amended and Restated Revolving Loan Agreement
Covenant-Failure Default
One-Sided
2025
"Borrower fails to perform or observe any other term, covenant or agreement contained in this Agreement (other than those covered by Section 6.2 above) on its part to be performed or observed and any such failure shall remain unremedied for 30 days after written notice has been given to Borrower by Lender"
Klaviyo
Collaboration Agreement With Shopify
Enhanced Breach Carve-Out
One-Sided
2023
"THE FOREGOING LIMITATION IN SECTION 10.3(b) SHALL NOT APPLY IN THE EVENT THAT, WITHIN ONE YEAR OF THE EFFECTIVE DATE, SHOPIFY SUBSTANTIALLY AND WILLFULLY FAILS TO MEET ITS MATERIAL OBLIGATIONS UNDER THIS AGREEMENT (WHICH FAILURE REMAINS UNCURED WITHIN THIRTY (30) DAYS FROM WRITTEN NOTICE BY KLAVIYO) (AN "ENHANCED BREACH")"
Intel Corporation
Altera Transaction Agreement Summary
Post-Closing Covenant Breach
One-Sided
2025
"The Company has agreed to indemnify Intel for certain liabilities arising out of the operation of the Business (other than with respect to certain tax liabilities) (the "Company Liabilities") and for any breach of any covenant or agreement of the Company contained in the Transaction Agreement that contemplates performance or compliance exclusively following the Closing."
Negotiate
You want leverage
Push the termination trigger to reach any breach, or at minimum every section you actually care about, not just a short named list.
Keep the cure period short, and carve out any breach that is incapable of cure so the clock never has to run on it.
Preserve your right to specific performance and to recover consequential damages, and resist a sole-and-exclusive-remedy clause that would foreclose both at once.
Set the liability cap high relative to contract value, with confidentiality, indemnity, and willful misconduct carved out of it entirely.
Add an express right to suspend your own performance while a dispute over the other side's breach is still open.
You want room to cure
Narrow the termination trigger to a material breach of specifically named sections, so a minor slip does not put the whole contract at risk.
Push for a longer cure period, and resist any carve-out that would let the other side label your breach incapable of cure.
Negotiate a sole-and-exclusive-remedy clause capped at a defined amount, and get a mutual consequential damages waiver in exchange.
Keep the liability cap low relative to contract value, and hold the carve-out list to the terms you can actually live with.
Require notice to run from actual receipt, not from when the other side claims to have sent it.
The termination trigger and cure period you agree to today are the ones a breach gets measured against later. Negotiate them before you need them, not after.
Red Flags
A single cure period applied to every breach forces the same waiting period on a missed payment and on a disclosure of your confidential information, and the second category is often incapable of cure.
A termination trigger narrowed to a short list of sections leaves failures outside that list with damages and no exit right.
Liquidated damages set above any plausible harm risk being struck down as a penalty, since UCC § 2-718(1) voids unreasonably large liquidated damages and many common-law jurisdictions apply a comparable reasonableness test to service contracts.
Sole-and-exclusive-remedy language paired with a low cap forecloses other claims and then limits the one claim that remains, so the drafted remedy can be worth far less than the loss.
A mutual consequential damages waiver with no carve-out for the breaches that matter to you removes the substance of the claim where your realistic loss is lost revenue.
Cure periods that run from "notice" with no defined notice method leave both sides arguing about when the clock started and whether termination was premature.
No express right to suspend performance during a counterparty breach means you may have to keep performing while the dispute runs, which increases the exposure you are trying to limit.
A materiality qualifier stacked on every obligation raises the threshold for any breach claim and can leave real failures below the line.
FAQs
This content is for informational purposes only and does not constitute legal advice.
