Survival clause
A survival clause lists the contract obligations that stay in force after the agreement ends, such as confidentiality, indemnities and unpaid fees.
What it means
When a contract ends, most obligations end with it. A survival clause makes an exception for terms that need to keep working afterward. Typical survivors include confidentiality, indemnification, limitation of liability, payment of amounts already owed, IP ownership, and dispute resolution.
Imagine a consultant whose engagement ends in June. Under the survival clause, confidentiality continues for three years and the indemnity continues with no end date. If a client secret leaks in September, or a third party sues over the consultant’s work the next year, those obligations still apply even though the contract is over.
Survival clauses can be general, such as “any provision that by its nature should survive,” or specific, naming sections and time limits. Specific lists are easier to apply, while general wording leaves room to argue. In some states, a stated survival period can also act as a deadline for bringing claims, so its length matters more than it looks.
What to watch for
- Check which sections are listed as surviving and whether important ones, like indemnities or payment terms, are missing.
- Look for time limits on each surviving obligation. Confidentiality for two years and confidentiality forever are very different commitments.
- Watch for catch-all wording such as “provisions that by their nature survive,” which invites disputes about what continues.
- See whether trade secrets stay protected for as long as they remain secret, rather than for a fixed period that could run out too soon.
- Check whether the survival period could also cut off your time to bring a claim, since some courts read it that way.
Example clause
Sections 5 (Confidentiality), 8 (Indemnification), 9 (Limitation of Liability) and 12 (Governing Law), and any obligation to pay amounts accrued before termination, shall survive the expiration or termination of this Agreement. Section 5 shall survive for three (3) years after termination, except that obligations regarding trade secrets shall continue for as long as the information remains a trade secret.
Even after the contract ends, you remain bound by confidentiality, the indemnity, the liability cap, the governing law, and any unpaid bills.