Survival indemnification: Overview, definition, and example
What is survival indemnification?
Survival indemnification refers to an agreement where certain indemnification obligations continue even after a contract ends. This ensures that one party remains responsible for covering losses, damages, or legal claims arising from actions taken during the agreement, even after its termination or expiration.
For example, if a company sells its business and agrees to indemnify the buyer against any past tax liabilities, the indemnification obligation may "survive" the closing of the deal for a set period, such as five years.
Why is survival indemnification important?
Survival indemnification protects businesses from risks that might surface after a contract ends. Without it, parties could avoid responsibility for damages or liabilities that arise later but stem from actions taken while the contract was in effect.
For sellers in mergers and acquisitions (M&A), survival indemnification ensures that they remain accountable for undisclosed liabilities. For service providers, it can cover post-contract claims related to negligence, intellectual property infringement, or breaches of confidentiality.
Understanding survival indemnification through an example
A software company licenses its technology to a client for three years. The contract includes an indemnification clause stating that the company will cover any legal claims from third parties alleging copyright infringement. The agreement expires, but a claim is filed against the client six months later. Because the indemnification obligation survives contract termination, the software company must still defend and compensate the client.
In another example, a construction contractor completes a project and the contract ends. A year later, the client discovers structural defects due to poor workmanship. If the contract included a survival indemnification clause covering defects, the contractor remains responsible for repair costs or damages, even though the contract has ended.
An example of a survival indemnification clause
Here’s how a survival indemnification clause might appear in a contract:
“The indemnification obligations set forth in this Agreement shall survive the termination or expiration of this Agreement for a period of [X] years and shall remain in effect with respect to any claims arising from actions taken during the term of this Agreement.”
Conclusion
Survival indemnification ensures that obligations related to indemnity continue beyond a contract’s termination, protecting parties from delayed risks and liabilities. It is particularly important in transactions where issues may arise after the business relationship ends, such as in M&A, service agreements, and product liability scenarios. Clearly defining survival periods in contracts helps prevent disputes and ensures long-term protection.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.