💡 Plain English Explanation

The survival period specifies how long confidentiality obligations continue after the NDA terminates or expires. This is distinct from the "term" of the agreement itself. Even after the parties stop sharing information, the duty to protect previously-shared information continues during the survival period.

Think of it like this: the term is when you can share secrets, and the survival period is how long those secrets must be kept after you stop sharing.

⚠ Why It Matters

Protection After Termination: Without a survival clause, confidentiality obligations could arguably end when the agreement terminates, leaving previously-shared information unprotected.

Trade Secret Considerations: Trade secrets may warrant indefinite protection (as long as they remain trade secrets), while other business information may only need 2-5 years.

Practical Planning: Both parties need to know when obligations end so they can manage their compliance programs and document retention policies accordingly.

🚩 Risk Factors

📄 Clause Versions

Balanced Version: Standard 3-year survival with trade secret carveout. Clear trigger date. 
Survival.

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

(b) Trade Secrets. Notwithstanding the foregoing, information that qualifies as 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.

(c) Surviving Provisions. The following provisions shall survive termination or expiration of this Agreement: [list applicable sections, typically including definitions, confidentiality obligations, return/destruction, indemnification, limitation of liability, dispute resolution, and general provisions].
Disclosing Party Favor: Longer survival period, broader survival scope, and perpetual protection for trade secrets. 
Survival.

(a) Survival of Confidentiality Obligations. 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) A period of five (5) years following the date of termination or expiration of this Agreement; 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 Survival of Certain Provisions. The following provisions shall survive in perpetuity: definitions, indemnification obligations, limitation of liability, dispute resolution, governing law, and any other provisions that by their nature should survive.

(c) Continuing Applicability. For the avoidance of doubt, the survival of confidentiality obligations shall apply to all Confidential Information disclosed during the term of this Agreement, regardless of when such information was disclosed or when the Agreement terminates.
Receiving Party Favor: Shorter survival, clear expiration, limited scope of surviving provisions. 
Survival.

(a) Limited Survival. The confidentiality obligations under this Agreement shall survive termination or expiration for a period of two (2) years from the date of termination or expiration. Upon the conclusion of such two-year period, all confidentiality obligations shall terminate and the Receiving Party shall have no further obligations with respect to any Confidential Information.

(b) Survival Trigger. For purposes of this section, the survival period shall commence on the effective date of termination or expiration of this Agreement, regardless of when any particular Confidential Information was disclosed.

(c) Limited Surviving Provisions. Only the following provisions shall survive termination: definitions (solely for interpretation purposes), dispute resolution, and governing law. All other provisions shall terminate upon expiration of the survival period.

(d) No Perpetual Obligations. For the avoidance of doubt, no confidentiality or other obligation under this Agreement shall continue beyond the survival period specified herein, including with respect to any information that may otherwise qualify as a trade secret.

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