Negotiation Overview
Survival clauses are often overlooked during negotiations, but they determine the real duration of your NDA obligations. A poorly negotiated survival clause can leave valuable information unprotected or burden your company with compliance obligations for decades.
The key negotiation points are: (1) the length of the survival period, (2) what provisions survive, (3) whether trade secrets receive special treatment, and (4) when the survival period begins.
Industry Standard Survival Periods
| Information Type | Typical Period | Notes |
|---|---|---|
| General Business Information | 2-3 years | Standard for most commercial NDAs |
| Technical Information | 3-5 years | Longer due to development cycles |
| Trade Secrets | Indefinite | As long as information remains a trade secret |
| M&A Due Diligence | 2-3 years | Shorter if deal fails, longer if completed |
| Employment/Separation | 3-5 years | May be perpetual for true trade secrets |
| Government Contracts | 5-10 years | Often mandated by regulation |
Market Standard
The most commonly accepted survival period is 3 years from termination. Periods exceeding 5 years are increasingly scrutinized, except for trade secrets which typically receive indefinite protection.
If You're the Disclosing Party
Your goal is to maximize the duration and scope of post-termination protection.
Strategy 1: Tier Your Survival Periods
Propose different survival periods for different categories of information. General business info might get 3 years, while technical specifications and trade secrets get 5 years or perpetual protection. This is often more acceptable than a blanket long survival period.
Strategy 2: Always Include a Trade Secret Carveout
Insist on language that extends protection for trade secrets "for as long as such information qualifies as a trade secret under applicable law." This ensures your most valuable information isn't left unprotected after a generic survival period expires.
Strategy 3: Tie Survival to Last Disclosure
Instead of running from termination, propose that survival runs from the date of last disclosure of each item of information. This ensures recently-shared information gets full protection.
"Given the sensitive nature of the technical specifications we'll be sharing, we need a 5-year survival period rather than 3 years. However, we're willing to accept 3 years for general business information. Let's tier the protection to reflect the different categories."
If You're the Receiving Party
Your goal is to limit the duration and scope of post-termination obligations.
Strategy 1: Push for a Unified, Reasonable Period
Argue for a single 2-3 year survival period that applies to all information equally. This simplifies compliance and provides a clear end date for all obligations.
Strategy 2: Resist Perpetual Obligations
Push back on "forever" survival, even for trade secrets. Argue that statutory trade secret law already provides perpetual protection, so contractual perpetuity is unnecessary and creates indefinite compliance burdens.
Strategy 3: Limit Surviving Provisions
Narrow the list of provisions that survive. Challenge whether indemnification really needs to survive, or whether it should terminate when confidentiality obligations end.
Strategy 4: Clear Expiration Language
Insist on explicit language stating that all obligations terminate at the end of the survival period, with no continuing duties after that date.
"We understand the need for post-termination protection, but a 5-year survival period creates significant compliance overhead for our organization. The industry standard is 2-3 years. We propose 3 years with a clear expiration date, which gives you meaningful protection while allowing us to manage our obligations."
Common Mistakes to Avoid
Mistake 1: No Survival Clause at All
Some NDAs simply don't address what happens after termination. Courts may imply a reasonable period, but why leave it to chance? Always include explicit survival language.
Mistake 2: Inconsistent with Related Agreements
If your NDA supports a master services agreement with a 2-year survival period, your NDA shouldn't have a 10-year survival period. Align your agreements to avoid confusion.
Mistake 3: Forgetting About Practical Compliance
Long survival periods require ongoing compliance programs, employee training, and document retention. Consider whether your organization can realistically maintain obligations for the proposed period.
Mistake 4: Vague Trigger Dates
Language like "survival shall continue for 3 years" without specifying from what date is ambiguous. Always state whether survival runs from termination, expiration, last disclosure, or another specific event.
Compromise Positions
When negotiations stall, consider these middle-ground approaches:
Tiered Survival by Information Category
2 years for general business information, 3 years for technical information, and "as long as it remains a trade secret" for trade secrets. This gives the disclosing party protection for sensitive items while limiting the receiving party's long-term burden.
Sunset with Trade Secret Carveout
Accept a shorter survival period (2 years) but include clear language that trade secrets remain protected under applicable law after the contractual period ends. This acknowledges that statutory protection continues independently.
Rolling Survival for Active Disclosures
Survival period runs from the date of last disclosure rather than termination, ensuring recently-shared information gets full protection while older information ages out.