Survival Period Email Templates

Thank you for your comments on the draft NDA. We have reviewed your request to reduce the survival period from five years to two years following termination or expiration of the Agreement. We are not able to accept this reduction. The confidential information we will be sharing includes trade secrets, proprietary technology, and strategic business information that will remain valuable and sensitive well beyond a two-year period. A shorter survival period would leave us unprotected precisely when the risk of competitive harm from disclosure is most significant. Our five-year survival period is consistent with market practice for transactions involving technology and strategic information of this nature. It also aligns with the typical statute of limitations for breach of contract claims, ensuring we have adequate time to discover and address any violations. We would note that the survival period does not prevent you from using publicly available information or information you independently develop. It simply requires that you continue to protect the specific confidential information we share with you for a reasonable period. If your concern relates to compliance burden, we can discuss whether there are specific categories of information for which a shorter period might be appropriate, while maintaining the five-year period for our most sensitive materials. Best regards, [Name]

We have received your comments regarding Section [X], which provides that confidentiality obligations for trade secrets survive indefinitely. We understand your preference for a fixed term, but perpetual protection for trade secrets is both legally appropriate and commercially necessary. Trade secrets, by definition, derive their value from remaining secret. Unlike patents, which have a defined term, trade secrets can retain their value indefinitely as long as they remain confidential. Under the Uniform Trade Secrets Act and the federal Defend Trade Secrets Act, trade secret protection lasts as long as the information qualifies as a trade secret. Our contract provisions simply reflect this legal framework. That said, we recognize your concern about open-ended obligations. We propose the following compromise: 1. For information that constitutes a trade secret under applicable law, confidentiality obligations shall survive for so long as such information remains a trade secret; and 2. For all other Confidential Information, confidentiality obligations shall survive for five years following termination or expiration of this Agreement. This structure provides appropriate protection for our most sensitive information while giving you certainty on the duration of obligations for ordinary confidential information. Please confirm if this approach is acceptable. Best regards, [Name]

Thank you for your comments regarding the survival period for technical information. You have suggested that technical information should be subject to a shorter survival period because technology evolves rapidly and such information quickly becomes obsolete. We respectfully disagree with this premise. While it is true that specific product implementations may change, the underlying technical concepts, methodologies, and architectural approaches often remain valuable for extended periods. Competitors could use this information to shortcut their own development efforts even years after receiving it. More importantly, we do not believe the receiving party should be the judge of when our technical information has become obsolete. We are the party best positioned to assess the ongoing sensitivity of our own technology and business information. We must maintain our position that all Confidential Information, including technical information, shall remain subject to confidentiality obligations for five years following termination. This is a standard term that we include in all of our confidentiality agreements. If you have specific concerns about compliance burden for older information, we are open to discussing a practical protocol for returning or destroying information after a reasonable period, which would reduce your ongoing obligations while preserving our protection. Best regards, [Name]

Given our discussions regarding the survival period, I would like to propose a compromise that I believe addresses both parties' interests. Rather than a single survival period for all Confidential Information, we propose a tiered approach: Tier 1 - Trade Secrets: Confidentiality obligations survive for so long as the information qualifies as a trade secret under applicable law. This is consistent with the legal framework and protects our most valuable assets. Tier 2 - Strategic and Financial Information: Confidentiality obligations survive for five years following termination. This includes financial projections, M&A plans, customer lists, and strategic plans. Tier 3 - General Business Information: Confidentiality obligations survive for three years following termination. This includes routine business documents, correspondence, and non-strategic operational information. We would clearly mark materials provided to you to indicate which tier applies, reducing any ambiguity about applicable obligations. This approach provides certainty for less sensitive information while maintaining appropriate protection for our crown jewels. We believe it represents a fair middle ground. Please let us know your thoughts on this proposal. Best regards, [Name]

Thank you for sending the draft NDA. We have reviewed the survival provision in Section [X] and have comments. The current draft provides for a seven-year survival period following termination. We believe this is longer than necessary and request that it be reduced to three years. Our rationale is as follows: 1. The information we expect to receive relates primarily to current operations and near-term plans. This information will be less sensitive after a few years as circumstances evolve. 2. A three-year survival period is consistent with the majority of NDAs we have signed in similar contexts. 3. Managing compliance with confidentiality obligations over extended periods creates administrative burden. A shorter, clearer term is more likely to be effectively implemented by our organization. 4. The three-year period is sufficient to cover the realistic period during which the information could be competitively valuable. We would also note that a shorter survival period does not affect your ability to pursue claims for breach that occurred during the survival period, as the statute of limitations runs from the date of breach, not the end of survival. We look forward to your response on this point. Best regards, [Name]

We have reviewed Section [X] of the draft NDA, which provides that confidentiality obligations shall survive "in perpetuity" or "indefinitely." We cannot accept an open-ended survival period. Perpetual obligations create several problems: 1. Compliance uncertainty - Without a defined end date, we cannot plan for when information can be used freely or when our compliance obligations end. 2. Administrative burden - We would need to maintain indefinite tracking and controls for information that will inevitably decline in sensitivity over time. 3. Practical enforceability - Courts have sometimes questioned the enforceability of perpetual contractual obligations, particularly where the underlying information has lost its confidential character. 4. Personnel turnover - Over extended periods, the individuals who understand what information was received and what restrictions apply will leave our organization, creating compliance challenges. We propose the following alternative: a fixed survival period of five years following termination or expiration. This is a substantial period that should adequately protect legitimately sensitive information. If you have specific trade secrets that you believe warrant longer protection, we would be willing to discuss a carve-out for clearly identified trade secrets, provided the standard is objective and we can determine when the information ceases to qualify. Please let us know if this approach is acceptable. Best regards, [Name]

Thank you for your response regarding the survival period. We would like to propose an alternative approach that limits the scope of surviving obligations rather than the duration. Currently, the draft provides that all obligations regarding Confidential Information survive for five years. We propose that the following categories of information be carved out from the survival provision, with obligations for such information terminating upon termination or expiration of the Agreement: 1. Information that relates solely to your current products or services that are publicly available at the time of disclosure; 2. General industry information that is not specific to your proprietary methods or technology; 3. Information that you have designated as "non-confidential" or released from confidentiality restrictions; 4. Contact information for your personnel; and 5. Information that has been superseded by updated versions that we have received. This approach ensures that your genuinely sensitive information remains protected for the full survival period, while allowing routine information to be treated appropriately. We believe this is a practical solution that addresses both parties' interests. Please let us know your thoughts. Best regards, [Name]

Given our continued discussions on the survival period, I would like to propose an alternative framework that ties survival obligations to the actual sensitivity of the information. Under this approach: 1. At the time of disclosure, you would designate each item or category of Confidential Information as either "Highly Sensitive" or "Standard Confidential." 2. Highly Sensitive Information would be subject to a five-year survival period. 3. Standard Confidential Information would be subject to a two-year survival period. 4. Any information not specifically designated would default to Standard Confidential. This framework has several advantages: - It incentivizes you to thoughtfully categorize information rather than applying maximum restrictions to everything. - It ensures your most sensitive information receives appropriate long-term protection. - It reduces our compliance burden for less sensitive materials. - It creates a clear, objective standard for determining applicable obligations. We are confident this approach would better serve both parties than a one-size-fits-all survival period. We would also be willing to discuss a maximum percentage of information that could be designated Highly Sensitive to prevent circumvention. Please let us know if this framework is acceptable as a basis for moving forward. Best regards, [Name]