Instead of using a survival clause, a simpler and preferred approach is to specifically look after the survival of each section or clause intended to survive. For example, the non-full clause would begin: “During the period beginning on the effective date and ending five years after the termination or expiration of this agreement, the executive will not be… The phrase intended to survive termination is present in all sorts of formulations: this is important for NDAs, as your survival clause may be totally useless in case of mishandling or has totally unintended consequences that give exactly the type of dispute you want to avoid. For example, an employment contract may include a confidentiality clause that does not allow the employee to disclose confidential information about the company to third parties. In the absence of a survival clause, the former employee will be free to disclose confidential information upon the expiry of the employment contract. However, the employment contract could include a survival clause according to which “confidentiality obligations are maintained two years after the end or expiry of this agreement”. In this case, the former employee could be held responsible for the disclosure of confidential information within two years of the termination of the employment contract. In principle, this clause allows the parties to apply certain rights and obligations for an additional period of three years after the end of the contract, in order to allow them to apply these provisions for a typical period of three years, which coincides with a general limitation period. There are many legal limits based on the provisions of the provision and its nature, all of which are subject to the contract law of the jurisdiction in which the treaty was drafted and/or is regulated (this is usually obvious, with the exception of some cross-border contracts that usually contain a statement about the laws that apply). Isn`t that abusive? If so, can this be legally enforced? In some situations, companies and individuals have an economically justified objective of extending contractual obligations beyond termination.
A contract survival clause may also refer directly to a specific section of the contract or to a paragraph to indicate that only that specific element of the contract overcomes past termination. What if the survival clause states that confidentiality obligations must last forever, unless the information is no longer confidential, a trade secret or privileged? For example, if you want a clause to last 5 years after termination, make sure that the [ORGANIZATION], [AUTHORIZATION representation] and [brokerage representation] representations survive the closing date indefinitely; and due to the unequality of the parties in the information available, buyers generally require that the seller`s insurance and guarantees survive the conclusion for additional protection….
