Glossary
Right of first refusal
A right of first refusalA right of first refusal gives one party the chance to match a third-party offer before the other side can take it. It is not exclusivity and not a right of first offer. Write the trigger, the terms that must be shared, the days to match, and whether silence is a waiver. Keep the window short.More in the glossary gives one party the chance to match a third-party offer before the other side can take it. It is not exclusivity and not a right of first offer. Write the trigger, the terms that must be shared, the days to match, and whether silence is a waiverA waiver is a choice not to enforce a right this time, without rewriting the contract. Accepting late work once does not, by itself, kill a time-is-of-the-essence clause if a no-waiver line is present. Waiver is not a variation: Rock Advertising Ltd v MWB [2018] UKSC 24 still requires the agreed method for a change of terms.More in the glossary. Keep the window short.
Last updated 28 October 2026
ROFR arrives in retainerA retainer is an arrangement where a client pays a regular fee to secure a set amount of time or ongoing access to a supplier.More in the glossary and in influencer papers: “before you take another brand in this category, we get to match.” That is narrower than an exclusivity clause and different from a most favoured nation price promise. A right of first offer (ROFO) is the other twin: you must come to us first, before you shop the market. Do not mix the three in one sentence.
We only draft a ROFR when the trigger is a real third-party offer, not a rumour. Lex will ask for the material terms to be shared, a short match window, and a rule that silence is a waiver. An open-ended ROFR over every future product is how a studio cannot sell.
How is it different from exclusivity or MFN?
Exclusivity stops the other deal. ROFR lets the other deal happen if you decline to match. most favoured nationA most favoured nation clause says the supplier will not give another customer a better price or term without offering the same to this client. It is a pricing promise, not exclusivity. Draft the comparison: same scope, same volume, same period. An open-ended MFN across every client and every product is hard to police and easy to breach.More in the glossary lets the other deal happen and then rewrites your price. Pick the lever you mean. A client who wants you off a rival’s roster needs exclusivity, not ROFR.
How long should the window be?
Five to ten business days is the usual commercial window. Thirty days kills the third-party offer. The notice should attach the material terms — fee, dates, usage — not the other client’s whole paper. confidentialityConfidentiality is a promise to keep shared information private and to use it only for the agreed purpose.More in the glossary still applies to what you are shown.
Does it bind a buyer of the business?
Only if you say the right runs with a sale or a novation. Otherwise a buyer of the supplier takes the paper subject to its terms, and a ROFR in the paper still binds the supplier entity. If the right was personal, say so, so a sale does not drag it across.
What if the third-party offer changes after we match?
Write that a material change restarts the window. Otherwise the holder matches a price the third party later improves, and the deal still walks. A “material change” line of 10% on fee or a change of dates is enough. Silence on this point is the usual fight.
A worked example
A photographer’s retainer gives the brand a ROFR on any full-day London campaign in the same category, ten business days to match, silence is a waiver. Another brand offers £2,400 for a Thursday. The photographer sends the material terms. The first brand does not reply in ten days. The photographer takes the Thursday. If the first brand had matched, Thursday would have been theirs at £2,400, and the other offer would have died.
How it shows up in a contract
Sample wording · our own drafting
Before accepting a third-party offer for [the same Services in the same category], the Supplier will give the Client written notice of the material terms and [10] Business Days to match. Silence is a waiver. A material change to the third-party offer restarts the window. This clause is not exclusivity and is not a most-favoured-nation promise.
In Plain English
Before we take the same kind of job for someone else, we show you the material terms and give you ten working days to match. If you say nothing, we are free. If their offer then changes in a real way, the clock starts again. This is not exclusivity and not an MFN.
Common mistakes
- Writing a ROFR that is actually exclusivity, or actually an MFN.
- Giving a 30-day window that kills the third-party deal.
- Forcing disclosure of another client’s whole contract instead of the material terms.
- Leaving silence ambiguous, so a late “we match” arrives after you have already started.
Frequently asked questions
What is a right of first refusal?
A chance to match a third-party offer before the other side can take it. It is not exclusivity and not a most-favoured-nation clause.
How is it different from exclusivity or MFN?
Exclusivity stops the other deal. ROFR lets it happen if you decline. MFN lets it happen and rewrites your price. See /glossary/exclusivity-clause and /glossary/most-favoured-nation.
How long should the window be?
Five to ten business days. Thirty days kills the third-party offer. Silence should be a waiver.
Does it bind a buyer of the business?
If the right is in the paper, it binds the contracting entity after a sale unless you said it was personal. Say which you mean.
Related
The legal wording governsLast reviewed 28 October 2026Pending lawyer review