Surviving Clauses: Confidentiality, Intellectual Property, Limitation of Liability

Explanation

Here is a plain English explanation of the suggested Survival clause:

The Survival clause specifies certain clauses in the contract that will remain in force even after the contract ends or is terminated.

In particular, it states that the clauses related to:

- Confidentiality - requiring the parties to keep each other's sensitive information secret

- Intellectual Property - dealing with ownership of any inventions, trademarks, copyrights, etc. created under the contract

- Limitation of Liability - limiting the amount of damages the parties can claim from each other

- Governing Law and Jurisdiction - stating which country's laws govern the contract and where disputes must be resolved

will continue to apply and be legally binding on the parties even after the rest of the contract is no longer in effect.

The reason these clauses survive termination is they deal with issues and rights that need to remain enforceable to protect the parties' interests even after their business relationship ends. For example, confidentiality obligations need to continue applying to prevent harmful disclosures.

In summary, the Survival clause aims to give ongoing effect to key clauses in the contract that the parties would want and expect to remain enforceable after the main deal concludes. It provides certainty on which provisions continue to be active post-termination.

History of the clause (for the geeks)

The concept of survival clauses in contracts emerged in English common law during the 19th century as a way to preserve obligations after the end of an agreement. Under traditional principles, when a contract was discharged or terminated, everything in the contract would lapse.

However, lawyers realized certain duties - like confidentiality and IP rights - should logically continue beyond the contract's expiration.

Courts began recognizing that parties likely intended for these ongoing obligations to survive termination, even if the contract was silent. As a result, the practice developed of expressly specifying which provisions survive within the contract text. This avoided ambiguity and gave certainty that those clauses would remain enforceable post-termination.

By the early 20th century, express survival clauses became common across various contract types. They allowed parties to carefully delineate which terms remained active. Survival clauses became particularly important in technology agreements to preserve confidentiality, IP rights, and liability limitations after conclusion of a deal.

As business arrangements grew more complex, survival clauses evolved from simply listing which provisions continue, to precisely defining post-termination rights, obligations and dispute resolution procedures. Detailed survival clauses provided certainty for parties exiting a contract regarding what expectations remain in force.

Today, survival clauses are deemed a crucial component of well-drafted contracts to avoid doubt around post-termination legal rights and duties.