Survival Provisions

💡 Plain English Explanation

The survival clause answers a critical question: what happens to your confidentiality obligations after the NDA ends? Just because the agreement terminates doesn't mean the secrets you learned suddenly become fair game.

Think of it this way: if you learn a company's secret formula during a 2-year NDA, should you be free to share it with competitors the day after the NDA expires? Survival provisions ensure that certain obligations continue beyond the agreement's term, protecting sensitive information even after the business relationship ends.

This clause specifies which provisions continue after termination, for how long they continue, and what triggers the survival period to begin running.

⚠ Why It Matters

For the Disclosing Party: Without a survival clause, you risk losing protection for your most valuable information the moment the NDA terminates. Trade secrets, customer lists, and strategic plans you shared in good faith could be exploited by the other party with no recourse.

For the Receiving Party: Perpetual obligations can create indefinite compliance burdens. You need clarity on when you can stop treating information as confidential, destroy records, and release employees from ongoing obligations.

For Both Parties: Clear survival provisions prevent disputes about post-termination obligations. They allow both parties to plan for the future, knowing exactly what responsibilities continue and for how long.

🚩 Risk Factors

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  No survival clause at all - Some NDAs fail to address post-termination obligations, creating ambiguity about whether confidentiality continues.
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  Perpetual obligations without limitation - "Forever" survival can be unenforceable and creates indefinite compliance burdens that are impossible to manage.
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  Unclear trigger date - Does survival begin from termination, last disclosure, or some other event? Ambiguity here leads to disputes.
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  No trade secret carveout - Generic survival periods may be insufficient for trade secrets, which may warrant protection as long as they remain secret.
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  Inconsistent with underlying agreements - Survival periods should align with related contracts (MSAs, licensing agreements, etc.).

📄 Clause Versions

SURVIVAL

(a) General Survival Period. The confidentiality and non-use obligations set forth in this Agreement shall survive the termination or expiration of this Agreement for a period of three (3) years following the effective date of such termination or expiration.

(b) Trade Secret Protection. Notwithstanding subsection (a), any Confidential Information that constitutes a trade secret under applicable law shall remain subject to the confidentiality and non-use obligations of this Agreement for so long as such information continues to qualify as a trade secret under applicable law.

(c) Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Section [__] (Definitions), Section [__] (Confidentiality Obligations), Section [__] (Return or Destruction of Information), Section [__] (Remedies), Section [__] (Limitation of Liability), Section [__] (Dispute Resolution), Section [__] (Governing Law), and this Section [__] (Survival).

(d) Effect of Survival. The survival of any provision shall not affect the termination of any other rights or obligations under this Agreement that are not expressly identified as surviving.

SURVIVAL

(a) Extended Survival Period. All confidentiality, non-use, and non-disclosure obligations under this Agreement shall survive any termination or expiration of this Agreement and shall continue for the longer of:
    (i) Five (5) years following the effective date of termination or expiration; or
    (ii) With respect to any Confidential Information that constitutes a trade secret under applicable law, for so long as such information remains a trade secret.

(b) Perpetual Protection for Core Information. Notwithstanding any other provision of this Agreement, the Receiving Party's obligations with respect to the following categories of Confidential Information shall survive in perpetuity: (i) source code, algorithms, and technical specifications; (ii) customer lists and customer data; (iii) pricing information and financial projections; and (iv) any information expressly designated as "Highly Confidential" or equivalent marking.

(c) Comprehensive Survival. The following provisions shall survive termination or expiration of this Agreement and shall remain in full force and effect: all definitions, all confidentiality and non-use obligations, return or destruction requirements, indemnification obligations, limitation of liability, injunctive relief provisions, dispute resolution, governing law, and any other provisions that by their nature are intended to survive.

(d) Continuing Applicability. For the avoidance of doubt, the survival of obligations shall apply to all Confidential Information disclosed during the term of this Agreement, regardless of when such information was disclosed or the reason for termination. The Receiving Party's obligations shall not be diminished by any passage of time, change in circumstances, or termination of any related business relationship between the parties.

SURVIVAL

(a) Limited Survival Period. The confidentiality obligations under this Agreement shall survive termination or expiration for a period of two (2) years from the effective date of termination or expiration. Upon expiration of such survival period, all confidentiality obligations shall terminate automatically without further action by either party.

(b) Clear Expiration. For the avoidance of doubt, no obligation under this Agreement shall continue beyond the survival period specified herein. This includes, without limitation, any information that may otherwise qualify as a trade secret under applicable law. The Receiving Party shall have no continuing obligations with respect to any Confidential Information after expiration of the survival period.

(c) Survival Trigger. The survival period shall commence on the effective date of termination or expiration of this Agreement, regardless of when any particular item of Confidential Information was disclosed. All Confidential Information is subject to a single, unified expiration date.

(d) Limited Surviving Provisions. Only the following provisions shall survive termination: definitions (solely for interpretation purposes during the survival period), confidentiality obligations (subject to the survival period), dispute resolution, and governing law. All other provisions terminate upon the expiration or termination of this Agreement.

(e) Post-Survival Rights. Upon expiration of the survival period, the Receiving Party may use, disclose, or dispose of any retained Confidential Information without restriction, subject only to any applicable statutory or common law protections that may apply independently of this Agreement.

💬 Quick Negotiation Tips

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  Always include a trade secret carveout. Standard survival periods (2-5 years) may be insufficient for trade secrets. Include language extending protection for as long as information qualifies as a trade secret.
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  Specify which provisions survive. Don't leave it to interpretation. Explicitly list each section number that continues after termination.
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  Clarify the trigger date. Ensure everyone agrees on when the survival clock starts ticking - typically the effective date of termination or expiration.
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  For in-depth negotiation strategies, see the full Negotiation Guide.