Survival
A survival clause lists the obligations that continue to bind the parties after the contract has ended, whether by expiry or termination.
What it does
When a contract ends, most obligations end with it: the supplier stops delivering, the customer stops paying. But some obligations only make sense if they continue. Confidentiality would be worthless if it ended the day the contract did. Payment for services already delivered must remain due. The liability cap must keep applying to claims made after termination about events during the term.
The survival clause makes this explicit. It names the clauses, or types of obligation, that survive, and sometimes for how long. Typical entries are confidentiality, accrued payment obligations, intellectual property, indemnities, liability limitations, data return and deletion, non-solicitation, audit rights, governing law and jurisdiction, and the survival clause itself.
In many legal systems, some of these would survive anyway because of their nature. The clause removes the argument. It also allows the parties to set different survival periods for different obligations: confidentiality for five years, non-solicitation for twelve months, audit rights for three years.
Example wording
Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination or expiry. The following clauses shall survive termination or expiry: [Confidentiality], [Intellectual Property], [Indemnification], [Limitation of Liability], [Data Return and Deletion], [Non-Solicitation], [Governing Law and Jurisdiction], and this clause, together with any other provision which expressly or by implication is intended to continue in force.
Risks for SMBs
Assuming everything ends. An SMB that terminates a supplier contract and assumes all obligations have ceased may still be bound by confidentiality, non-solicitation, and non-compete terms for a year or more. Read the survival clause before hiring the supplier’s consultant or launching a competing product.
Assuming the protective clauses continue. The reverse problem: a customer that discovers a data breach after termination and finds the indemnity or the supplier’s data deletion obligation is not listed as surviving. If the list is exhaustive and the clause you need is not on it, you may have lost it.
Missing the transition obligations. Data export, migration assistance, return of materials, and final invoicing all happen after termination. If they are not stated to survive, and are not framed as obligations arising on termination, a supplier may refuse to cooperate once the contract has ended. See termination for cause.
Indefinite survival. “This clause survives indefinitely” is convenient for the drafter and uncomfortable for the party bound. Set periods where possible, especially for non-solicitation and audit rights.
Catch-all wording. “Any provision which by its nature should survive” avoids omissions but invites argument about what that means. Use both: a specific list and a catch-all.
Common variants and negotiation points
- Specific list plus catch-all. The standard middle ground. Name the clauses, then add the catch-all for anything missed.
- Defined periods. Attach a period to each surviving obligation where a limit makes sense. Confidentiality three to five years, non-solicitation six to twelve months, audit rights two to three years.
- Post-termination assistance. Add a transition clause with a defined period of cooperation, at agreed rates, and state that it survives.
- Accrued rights. Always include the accrued rights sentence, so that neither side can use termination to escape liabilities already incurred.
- Consistency check. Make sure every clause that says “this clause survives termination” also appears in the survival list, and vice versa.
Related clauses
- Confidentiality: the classic surviving obligation.
- Termination for cause: what triggers the survival clause.
- Liability cap: must survive to protect against post-termination claims.
- Non-solicitation: only works after termination if listed as surviving.
This page is general information about a common contract clause. It is not legal advice and does not account for your jurisdiction, industry, or the specific contract in front of you. Talk to a qualified lawyer before relying on it.
Tracking renewal dates, notice periods, and other contract obligations is what Trackado does.