Survival severability: Overview, definition, and example
What is survival severability?
Survival severability refers to two distinct legal concepts that are often included in contracts to address the ongoing enforceability of certain provisions even after the contract is terminated, and the ability to separate or enforce parts of the contract if any section becomes invalid.
- Survival: Certain provisions of a contract "survive" termination, meaning that they continue to be valid and enforceable even after the agreement has ended or been dissolved. These provisions typically relate to obligations that extend beyond the contract's termination, such as confidentiality, indemnity, or dispute resolution clauses.
- Severability: A severability clause ensures that if one part of the contract is found to be unenforceable or invalid, the rest of the contract remains intact and enforceable. The unenforceable part is "severed" or removed from the agreement, while the remaining terms continue to apply.
Together, survival and severability clauses help protect the integrity of a contract by ensuring that key provisions remain in force even if other parts of the contract are invalidated.
Why is survival severability important?
Survival severability is important because it provides stability and clarity for both parties in a contract. By specifying that certain provisions will remain valid even after termination, it ensures that important obligations—like confidentiality or liability—continue to be upheld. For example, a non-disclosure agreement (NDA) might include a survival provision stating that confidentiality obligations extend after the contract ends.
The severability aspect helps protect the overall contract from becoming void due to one unenforceable clause, ensuring that the remaining valid terms continue to be upheld. This allows for greater flexibility and reduces the risk of a contract being entirely invalidated due to a single issue.
Understanding survival severability through an example
Imagine a business partnership agreement that includes a confidentiality provision, which states that even after the agreement terminates, both parties must continue to respect confidentiality for a specified period. This provision "survives" the termination of the partnership, meaning the confidentiality obligation does not end when the partnership is dissolved.
In another example, a software licensing agreement includes a severability clause. If a court finds that a specific limitation of liability provision in the contract is unenforceable, the rest of the agreement, such as the licensing terms or payment obligations, remains in force, ensuring that the contract’s integrity is maintained.
An example of a survival severability clause
Here’s how a survival and severability clause might appear in a contract:
“Survival: The provisions of this Agreement regarding confidentiality, indemnity, and dispute resolution shall survive the termination of this Agreement. Severability: If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect, and the invalid or unenforceable provision shall be modified to reflect the parties’ original intent as closely as possible.”
Conclusion
Survival and severability clauses are critical for ensuring that a contract remains enforceable and protects the rights and obligations of the parties involved, even in the face of termination or invalid provisions. By allowing certain provisions to survive after the contract ends and ensuring that the invalidity of one clause does not invalidate the entire agreement, these clauses provide clarity, stability, and flexibility in contract enforcement.
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.