Survival Clause FAQ

When an NDA expires or terminates, certain obligations continue - they "survive" the end of the agreement. The key distinction is between rights that end and those that persist.

Typically survives:

• Confidentiality obligations: The core duty to keep information secret
• Non-use restrictions: Prohibitions on using confidential information for unauthorized purposes
• Return/destruction obligations: Requirements to return or destroy confidential materials
• Injunctive relief provisions: The right to seek court orders for breaches
• Indemnification: Obligations to cover losses from breaches
• Dispute resolution: How disputes will be resolved
• Governing law: Which jurisdiction's laws apply

Typically does NOT survive:

• Right to receive new confidential information: No more disclosures after termination
• Active project collaboration: Whatever you were working on together ends
• Exclusivity or non-compete provisions: May or may not survive, depending on language

Key point: The survival clause should explicitly list which sections continue. If it doesn't, courts interpret based on the purpose of each provision.

This is one of the most commonly misunderstood aspects of NDAs. There are two different approaches:

Approach 1: From termination/expiration (more common)

• The survival clock starts when the NDA ends
• Example: "Confidentiality obligations survive for 3 years following termination"
• All information is protected for the same duration after the NDA ends
• Simpler to track - one date applies to everything

Approach 2: From disclosure (less common, but more protective)

• The survival clock starts when each piece of information is disclosed
• Example: "Confidentiality obligations continue for 5 years from the date of disclosure"
• Information disclosed early gets more total protection
• More complex to track - each disclosure has its own expiration

Real-world example:

NDA term: January 2023 - January 2025 (2 years)
Information disclosed: June 2023
Survival period: 3 years

• From termination: Protection ends January 2028 (4.5 years total)
• From disclosure: Protection ends June 2026 (3 years total)

Best practice: Always clarify in your NDA which approach applies. Ambiguity leads to disputes.

Yes, but with significant caveats.

When perpetual survival makes sense:

• Trade secrets that could remain valuable indefinitely
• Source code or algorithms that don't become obsolete
• Personal information subject to privacy regulations
• Information that could cause harm no matter how old it is

Problems with perpetual survival:

• Enforceability concerns: Some courts disfavor indefinite obligations as unreasonable
• Compliance burden: The receiving party must maintain controls forever
• Corporate changes: What happens if companies merge, dissolve, or are acquired?
• Practical tracking: Decades later, can anyone prove what was confidential?

Better alternatives to blanket perpetual survival:

• Perpetual only for trade secrets; fixed term for other information
• "For so long as the information remains confidential and retains value"
• "For the maximum period permitted by law"
• Long but fixed periods (10-15 years) instead of perpetual

Practical reality: Many NDAs with "perpetual" survival become practically unenforceable after many years because evidence of what was disclosed and its confidential nature becomes unavailable.

It shouldn't, if drafted properly. Trade secrets deserve special treatment.

The problem:

A standard 3-year survival period might expire while information still qualifies as a trade secret under law. If the NDA is the only protection, the disclosing party loses rights.

The solution - trade secret carveouts:

Well-drafted NDAs include language like: "Notwithstanding the foregoing, any Confidential Information that constitutes a trade secret shall remain subject to confidentiality obligations for so long as such information remains a trade secret under applicable law."

Why this matters:

• Trade secret law provides perpetual protection as long as information remains secret
• The NDA shouldn't inadvertently shorten that protection
• Without a carveout, the NDA's fixed term might be interpreted as the exclusive remedy

How trade secret protection works differently:

• No fixed term - protection lasts as long as secrecy is maintained
• Requires ongoing reasonable measures to protect secrecy
• Lost if information becomes publicly known or independently discovered
• Protected under state (UTSA) and federal (DTSA) laws

Practical tip: If you're sharing trade secrets, always insist on a carveout that preserves trade secret protection beyond any fixed survival period.

Yes, but you'll need to rely on trade secret law, not the NDA.

After NDA survival expires:

• You can no longer sue for breach of the NDA's confidentiality provisions
• You CAN sue under trade secret law (DTSA or state UTSA) if the information qualifies
• The legal analysis shifts from contract breach to statutory misappropriation

Trade secret claim requirements:

• The information must qualify as a trade secret (derives value from secrecy)
• You must have taken reasonable measures to maintain secrecy
• The defendant must have acquired it through improper means or breach of duty

Advantages of trade secret claims:

• No fixed time limit on protection
• Potential for enhanced damages (up to 2x for willful misappropriation)
• Attorney fee recovery in some cases
• Federal court jurisdiction under DTSA

Advantages of NDA claims:

• Clearer contractual obligations (no need to prove "trade secret" status)
• Pre-agreed remedies like injunctive relief provisions
• Covers information that might not qualify as a trade secret
• Easier to prove breach than misappropriation

Best approach: Bring claims under both the NDA (if still in survival) and trade secret law. Belt and suspenders.

This is one of the biggest practical challenges in trade secret litigation.

Evidence you'll need:

• Original disclosure records: What information was shared, when, and how it was marked
• Continued secrecy measures: Ongoing access controls, confidentiality agreements, security protocols
• Non-public nature: Proof the information wasn't disclosed elsewhere or reverse-engineered
• Continued value: Evidence the information still provided competitive advantage

Contemporaneous documentation is critical:

• Keep copies of confidentiality legends and markings used
• Document access controls and who had access over time
• Save records of confidentiality training and policies
• Track any public disclosures that might affect trade secret status

Common weaknesses in old trade secret claims:

• Nobody remembers what was actually shared
• Documents have been destroyed under retention policies
• Personnel who handled the information have left
• Security measures evolved and old practices weren't documented

Practical tip: Create and maintain a "trade secret register" that catalogs your key trade secrets, when they were developed, who has access, and what protective measures are in place. Update it periodically.

Review your specific NDA carefully. Requirements vary, but common obligations include:

Return obligations:

• Return all physical documents, prototypes, and samples
• Transfer electronic files back to the disclosing party
• Return all copies, notes, and summaries (not just originals)

Destruction obligations:

• Securely destroy materials that cannot or need not be returned
• Delete electronic copies from all systems and backups
• Often requires certification of destruction in writing

Common exceptions preserved:

• Copies in routine backup systems (until backup cycle overwrites them)
• Records required to be retained by law or regulation
• Files your legal counsel retains for litigation preparedness
• Board minutes or records containing references to confidential information

Timing: Most NDAs specify a deadline (e.g., "within 30 days of termination" or "upon written request"). Don't wait to be asked if the NDA says obligations trigger automatically.

Certification requirement: Many NDAs require a signed certificate from an officer confirming compliance. Take this seriously - false certification creates additional liability.

Generally no, unless specifically permitted by the NDA.

Why you might want to retain copies:

• To prove what you received if disputes arise
• To defend against claims you misused information
• To demonstrate the timeline of disclosures
• Legal hold requirements if litigation is anticipated

Why you typically can't:

• Return/destruction clauses usually require returning or destroying ALL copies
• Keeping copies without authorization is itself a breach
• Certification of destruction would be false if you secretly retained copies

Legitimate exceptions (if in your NDA):

• Legal counsel archive: "One copy may be retained by Receiving Party's legal department for evidentiary purposes"
• Regulatory requirements: "Copies required to be retained by law need not be destroyed"
• Backup systems: "Copies in routine backup systems need not be actively deleted if subject to standard backup rotation"

Best practice: If you need to retain copies for legitimate purposes, negotiate for an explicit exception before signing. Don't assume you can keep copies without authorization.

Not necessarily. The NDA's survival period ending doesn't mean all restrictions disappear.

What ends when NDA survival expires:

• The disclosing party's ability to sue you for breach of the NDA's confidentiality provisions
• Specific contractual restrictions on use that had a fixed term

What may continue beyond NDA survival:

• Trade secret protection: If the information still qualifies as a trade secret, misappropriation is still actionable
• Other contractual obligations: Provisions in other agreements (employment, service agreements) may still bind you
• Professional duties: Attorneys, accountants, and other professionals may have continuing ethical obligations
• Privacy regulations: Personal data may be protected by GDPR, CCPA, or other laws indefinitely

What you CAN do after survival ends (absent other restrictions):

• Use non-trade-secret business information you legitimately retained
• Apply general knowledge and skills you developed
• Compete using information that became public

Caution: Before using previously confidential information after survival expires, assess whether any other legal protections still apply. When in doubt, consult counsel.

It depends on the nature of the information and your risk tolerance.

Guidelines by information type:

• Trade secrets: Perpetual or "for so long as remains a trade secret"
• Technical specifications: 5-7 years (technology often becomes obsolete)
• Business strategies: 3-5 years (plans change, competitive advantage diminishes)
• Financial information: 3-5 years (historical financials become less sensitive)
• Customer lists: 5+ years (relationships remain valuable long-term)
• Personal data: Consider regulatory requirements (may need perpetual)

Factors that justify longer survival:

• High competitive sensitivity of the information
• Long product development cycles in your industry
• Information took significant investment to develop
• Potential for serious harm if disclosed later

Factors that make shorter survival reasonable:

• Information becomes stale quickly
• Industry moves fast and information becomes obsolete
• Limited competitive harm from later disclosure
• Receiving party has legitimate concerns about compliance burden

Practical approach: Use a two-tier system: shorter fixed period for general confidential information, perpetual protection for trade secrets.

Aim for the shortest period that's reasonable for the type of information involved.

Typical acceptable ranges:

• Minimum: 2 years (rarely shorter unless information has very short utility)
• Standard: 3 years (common compromise)
• Extended: 5 years (for more sensitive information)
• Trade secrets only: Accept perpetual for genuine trade secrets, not everything

What to push back on:

• Perpetual obligations for information that clearly isn't a trade secret
• Vague categories of "highly confidential" information getting longer protection
• Survival running from disclosure (creates indefinite obligation)
• Requirements that make compliance impractical

Negotiation tactics:

• Accept longer survival if you get clearer carveouts (backup systems, legal retention)
• Trade shorter survival for stricter security requirements during the term
• Propose reciprocal terms if it's a mutual NDA
• Request that perpetual obligations only apply to information actually marked as trade secret

The compliance reality: Consider how you'll actually comply. Perpetual obligations require perpetual tracking, training, and systems. Can your organization realistically maintain that?

Contract management is essential for organizations with multiple NDAs.

Basic tracking approach:

• Maintain a spreadsheet or database of all NDAs
• Record: Counterparty, effective date, term, termination date, survival period, survival end date
• Set calendar reminders for key dates
• Review annually to identify expiring agreements

Key information to track:

• When was the NDA signed?
• When does/did the NDA term end?
• How long is the survival period?
• Does survival run from termination or from disclosure?
• Are there different survival periods for different types of information?
• What are the return/destruction requirements and deadlines?

For larger organizations:

• Use contract management software (ContractPodAi, Ironclad, etc.)
• Integrate NDA tracking with document management systems
• Assign ownership for each NDA to specific individuals
• Conduct periodic audits of NDA compliance

Common mistake: Companies focus on signing NDAs but ignore tracking them. Years later, nobody knows what obligations still apply, and expired NDAs may be inadvertently treated as still in force.

This depends on the NDA's assignment provisions and how the acquisition is structured.

In an asset acquisition:

• Contracts are only transferred if specifically assigned
• The selling company may remain bound by NDAs unless released
• The buyer may need to sign new NDAs or have old ones assigned

In a stock/merger acquisition:

• The company continues to exist (just with new ownership)
• All contracts typically remain in force automatically
• The acquiring company inherits NDA obligations

Common NDA provisions affecting this:

• Anti-assignment: "This Agreement may not be assigned without consent" - may require disclosing party approval
• Change of control: Some NDAs terminate or trigger return obligations upon acquisition
• Successor binding: "This Agreement shall bind successors and assigns" - obligations transfer

Practical issues:

• Acquirer's competitors may have had NDAs with the target
• Information shared with target is now accessible to acquirer's broader organization
• Disclosing parties may object to their confidential information being controlled by a new entity

Best practice for disclosing parties: Include provisions that terminate the NDA or require return of information upon change of control if the acquirer is a competitor.