Survival clauses

Survival clauses are critical contractual provisions ensuring certain rights and obligations persist beyond contract termination. This guidance covers essential considerations for drafting and enforcing survival clauses in commercial agreements, with a focus on protecting confidentiality, warranties, indemnities, and other post-termination obligations.

Topics Covered

• Purpose of this boilerplate clause
• Key drafting considerations for this boilerplate clause
• Possible approaches

Essential Insights

• Assess which contractual provisions should survive termination to maintain enforceability without ambiguity.
• Evaluate interactions between survival and termination clauses to avoid conflicting obligations post-contract.
• Consider the impact of the Australian Consumer Law’s unfair contract terms regime on survival clauses, especially for small business contracts.
• Recognise risks of extended or indefinite survival periods that may trigger legal challenges or penalties.
• Adopt strategic drafting approaches ranging from general descriptions to exhaustive lists of surviving provisions for clarity.
• Account for complex regulatory changes effective from November 2023 affecting contract enforceability and penalties.