Invoking Provisions That Are “Intended to Survive Termination”

I’m no fan of saying in a contract that certain provisions survive termination. See MSCD 13.642 and this 2006 post. Heck, even the Delaware Chancery Court noticed that.

But if simple survival isn’t enough, you can layer futility upon futility. At the suggestion of a reader, I dug up the following:

Those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.

OK, so something survives if the parties intended it to survive! An intention doesn’t have to be made explicit in a contract. Instead, it can be gleaned from the context. It follows that you could get into a fight over whether the parties in fact intended for something to survive.

The phrase intended to survive termination occurs in all sorts of formulations:

Upon termination or expiration of this Agreement … each Party’s rights and obligations with respect to fees payable hereunder, in accordance with Section 4 of this Agreement, and such other provisions that by their nature are intended to survive termination, shall survive the termination of this Agreement.

Termination will not affect accrued rights, indemnities, existing commitments or any contractual provision intended to survive termination and will be without penalty or other additional payment.

The rights and obligations of the parties set forth in this Section 17.5 and Section 1, Section 14, Section 15.1, Section 15.3, Section 15.4, Section 16, Section 18, Section 19, Section 21 and Section 22, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

(By the way, if you’re wondering about termination versus expiration, see this 2012 post.)

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.