Guidance

The Survival Clause and Common Law

Typically, any duties, responsibilities, or obligations the parties have under any provision of an agreement end when the agreement ends. A Survival clause overwrites this, and makes provisions of an agreement “survive” after the agreement itself ends.

For example, an employment contract might include a confidentiality clause, that the employee could not disclose confidential company information to third-parties. Without a survival clause, once the employment agreement ended, the now ex-employee would be free to disclose the confidential information. However, the employment contract could include a survival clause that “The Confidentiality Obligations will survive for two years after the termination or expiration of this agreement.” In this case,  the ex-employee could be liable for disclosing confidential information during the two years after the end of the employment contract.

Three Types of Survival Clause: One Useful, Two Useless

There are three typical types of Survival clauses: (1) Survival of Provisions, (2) Survival of Representations and Warranties, and (3) Survival of Claims. Of the three, only Survival of Provisions is necessary or useful.

Survival of Representations and Warranties should be handled in the Representations and Warranties clause, rather than in a separate Survival clause. The parties should include in the Representations and Warranties clause how long the facts disclosed as representations or warranties will be guaranteed for.

Survival of Claims is simply redundant, restating the obvious that the end of an agreement does not stop an injured party from suing for damages.

Ken Adams, "Survival," (accessed July 25, 2016). 

Components of a Survival Clause

The survival clause should include two things: (1) what provisions will survive, and (2)  the term of survival, how long the provisions will survive after the end of the agreement.

Survival clauses can provide for general survival of provisions (e.g., "any provision… which imposes an obligation after termination…"), or identify specific provisions by heading ("Confidentiality") or section number ("obligations in articles 10 and 13 of this Agreement").

Survival clauses can also specify the term of surviving obligations by either the occurrence of an event ("…until the confidential information becomes public") or a specific time period ("…5 years after termination").

However, even the survival of provisions does not necessarily require a separate clause. Instead, survival of a particular provision could be included in the clause itself. For example, if the parties intent for the Confidentiality clause to survive the agreement for two years, they could include at the end of the Confidentiality clause: “The Confidentiality Obligations will apply for the term of this agreement and for two years after the termination or expiration of the agreement.” This could be repeated for any other provisions the parties intend to survive.

Whether to create a separate Survival clause or to include survivability in the provisions themselves is a matter of preference for the parties, whether they want to add an additional clause to their agreement. Including a separate Survival clause probably makes the most sense in an agreement with general survivability or when a number of provisions are meant to survive. If only one provision is supposed to survive, including survivability in the clause itself might be the simplist solution.

About

  • Organization: Public
  • Updated: 04/22/2020
  • Rating

Overview

The Survival clause specifies which contract provisions will remain in effect after the termination or expiration of the agreement.

Common obligations covered by Survival clauses include Confidentiality, Non-Competition, and Effect of Termination.

After these core obligations, the Survival clause can be highly deal-specific, with certain representations, warranties, and other obligations also continuing.

Our alternative language is meant to be easily adaptable to these more complex Survival clauses. Use the alternative language for the general representations, warranties, and obligations to survive for a certain period, and if need be, an enumerated list of representations, warranties, and obligations that will survive for a longer or shorted period.

Instead of using a Survival clause, a simpler and preferred approach is to specifically provide for survival in each section or clause that is meant to survive. For example, the Non-Complete clause would begin: "During the period beginning on the Effective Date and ending five years after the termination or expiration of this agreement, the Executive will not..."