I had an agreement that required I carry errors and omissions insurance during the life of the agreement and “for a period of not less than two years after the expiration of this agreement”.

However, the agreement has been terminated by the buyer well before the expiration, and well within the rights of the buyer per the terms of the agreement, but it was terminated and did not expire. For reference, this requirement to carry insurance is under a section of the agreement titled “INSURANCE”.

Under the section “SURVIVAL OF TERMS”, it says “Termination or expiration of this Agreement for any reason shall not release either party from any liabilities or obligations what (i) are set forth in the Sections of the Agreement entitled “Ownership of Work Product”, “Proprietary Rights Indemnification”, “Cross Indemenification”, “Limitation of Liability”, “Confidentiality”, “Taxes”, and “Compliance with Laws, Regulations and Policies”, or (ii) remain to be performed or by their nature would be intended applicable following any such termination or expiration.

Since the agreement was terminated and did not expire and the section titled “INSURANCE” requires the insurance for two years beyond the “expiration” and because the “INSURANCE” section of the document is not specifically indicated in the “SURVIVAL OF TERMS”, I don’t believe I am still required to to carry the insurance? Because of the termination, there was no expiration, and therefore no applicable date of reference by which to calculate the two year insurance maintenance period beyond “expiration”. Does termination CAUSE expiration or does it VOID expiration, or does the original expiration continue to exist?

Obviously, I would want it to void expiration and then argue that this insurance is not “intended applicable following any such termination or expiration”.

The buyer does not even want the data from the services supplied, which further indicates that the data in which I was insuring is not “intended applicable” after the termination, so the “INSURANCE” section of the agreement does not survive.

Indeed, it seems advantageous for a contract to treat what happens in either situation differently. For example, I “terminate,” you can get a refund, but if the agreement “expires,” nothing happens since the agreement has done for both of us what we intended it to do. Clearly, you shouldn’t get a refund if the agreement expires.

Now, it may be that the “refund” contemplated by the example is really a codification of the remedy available to me at law, but why would I want to sue?