Question 1

What happens to confidentiality if there's no survival clause?

Accepted Answer

Without a survival clause, confidentiality obligations technically end when the contract terminates. The other party could argue they're no longer bound by the NDA or confidentiality provisions. Some courts imply a reasonable survival period, but you don't want to rely on a judge's discretion. Always include an explicit survival clause that covers confidentiality.

Question 2

Which clauses typically survive termination?

Accepted Answer

The usual suspects: confidentiality, indemnification, limitation of liability, intellectual property ownership, non-compete/non-solicitation, governing law, and dispute resolution. Payment obligations for work already performed also typically survive. The general rule is: if the obligation only makes sense during the active relationship, it dies. If it needs to continue to protect either party, it should survive.

Question 3

Should survival clauses have time limits?

Accepted Answer

Usually yes. Most survival clauses specify a duration — 2 to 5 years is common. Indefinite survival clauses can be harder to enforce for some obligations (like non-competes). The exception is trade secrets and IP ownership, which often survive indefinitely because the rights don't diminish over time. A tiered approach works well: IP and trade secrets survive forever, confidentiality survives 5 years, indemnification survives 3 years.

Question 4

Can I negotiate a survival clause?

Accepted Answer

Absolutely, and you should. Sellers and service providers often want minimal survival obligations. Buyers and clients want maximum protection after termination. The negotiation usually centers on which clauses survive, for how long, and whether the scope narrows over time. A mutual survival clause that protects both parties equally is easier to negotiate than one-sided perpetual obligations.

Question 5

Is a survival clause the same as a severability clause?

Accepted Answer

No. A severability clause says 'if one provision is unenforceable, the rest of the contract survives.' A survival clause says 'these specific provisions continue after the contract terminates.' Severability is about what happens when a clause is struck down. Survival is about what happens when the contract ends. Both are important, but they serve completely different purposes.

Question 6

What if a contract has no survival clause at all?

Accepted Answer

Some obligations may survive by operation of law (like indemnification for claims that arose during the contract term), but many will not. Courts vary on whether they'll imply survival for obligations like confidentiality. The safest approach: never rely on implied survival. An explicit survival clause costs nothing to draft and eliminates a major source of post-termination disputes.

Survival Clause

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