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The clauses that outlive the contract

A survival clause lists the duties that keep binding after a contract ends, and some of them have no end date. This guide reads one from a real agreement filed with the SEC.

What it costs

The contract can end, and confidentiality still runs at least 120 months, while the promise not to disparage has no end date.

Assumes the agreement ends with its term. From the filing: confidentiality for at least ten years after the term, the staff ban for twelve months, and no end date on the promise not to disparage.

The clause, from a real filing

12(a). Survival

Sections 4, 5, 6, 9, 10, and 12 shall survive any expiration or termination of this Agreement.
Consulting Agreement, Exhibit 10.1, CIK 1737287, Form 10-Q, filed with the SEC on May 3, 2023. Read the original on SEC.gov
  • High risk

    Duties with no end date

    The promise not to disparage has no end date. The agreement itself runs six months, but the survival list also pulls in the liability limit, the indemnity and the warranties, and confidentiality runs at least ten years after the end. The list names six sections and uses no wording that opens it further.

The change to ask for

Before: Sections 4, 5, 6, 9, 10, and 12 shall survive any expiration or termination of this Agreement.

After: Sections 4, 5, 6, 9, 10, and 12 shall survive any expiration or termination of this Agreement, except that Section 5(b) shall end three (3) years after the Term and Section 4(d) shall end when the period in Section 4(a) ends.

Suggested language to discuss, not legal advice. Three years is an example. The liability limit and the indemnity protect the consultant, so they stay.

Before you sign: what survives

  1. Find the survival clause. It often sits under Term and Termination, or Survival.
  2. Read the list of sections it names, and look for words like "including, but not limited to". They usually mean the list is not closed.
  3. Look up each section it names, and write down what duty it holds.
  4. For each duty, find how long it lasts after the contract ends. Confidentiality and non-solicitation often state a period; non-disparagement and indemnity often do not.
  5. Mark any duty with no end date. Nothing in the contract ends it.
  6. Ask for an end date on each ongoing duty that survives, and for the survival clause to say how long each one lasts.
Open the one-page checklist to print
Transcript
  1. 0:00Ending a contract does not end all of it.
  2. 0:03It comes from a consulting agreement filed with the SEC.
  3. 0:09The clause names six parts that keep binding after it ends.
  4. 0:13The clause lists them by number: sections 4, 5, 6, 9, 10, and 12.
  5. 0:19Half of them mainly protect the company and bind the consultant.
  6. 0:23Confidentiality runs at least ten years after the end, and the ban on soliciting its staff runs twelve months.
  7. 0:29The promise not to disparage has no end date, and the company keeps the inventions made in the work.
  8. 0:35Check three things. Which sections survive? For how long? And does any of them have no end date?
  9. 0:42Ask for an end date on the promise not to disparage, and on confidentiality.
  10. 0:47Ask that the survival clause say how long each section lasts.
  11. 0:51Then keep a list of what still binds you after the work ends.
  12. 0:57Check your contract for this clause.
  13. 1:00Your first read is free.

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BeforeJD is not a law firm. This is informational only, not legal advice.