The terms “boiler plate clauses” and “survival clauses” are often used interchangeably. This is because the clauses that are categorised as a boiler plate clause or survival clause are often the same clauses. But, can they be considered the same? A look into what they are and how they are used shall shed more light onto the question at hand.
In simple terms, boiler plate clauses refer to the “standard” clauses that are present in almost every contract. They are often described by the lawyers working on contracts as standard and necessary. These clauses are also the kind, which are not given much attention during negotiations due to their standard nature. Boiler plate clauses often relate to the basic information of the parties, the law of the contract, nature of information and its exchange, communication between the parties, conflict resolution etc.
Coming to the survival clause, again in simple words, the term refers to the clauses that survive the end of a contract or contract. What they do is to have the parties to the contract bound by few clauses even after the termination or expiry of the contract to ensure that the intention of the contract is not only achieved, but also preserved and even in some cases, allowed to further develop and improve. A blunt way to put this is, to have the parties preserve their public image, intellectual property and other confidential information and procedure, safe and secure.
Boiler plate clauses essentially deal with the nitty-gritty that is present in all contracts, for example, notices, force majeure, jurisdiction etc. They are the clauses that are found in almost all contracts and do not carry specific information related to the performance specific obligations of the parties to the contract, but focus more on the contract as a whole and providing the essentials and the basics.
Survival clauses are the clauses that identify as being able to survive the termination of the contract and demanding compliance from the parties to the provision thereto even if the parties have concluded or terminated the contract. For example, confidential information, indemnity, residual knowledge etc. The survival clauses focus on preserving the intention of the contract and the interests of the parties even after the parties have completed their respective performance under the contract.
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Boiler plate clauses are needed to complete the contract and provide the essential details of the contract. These are the details that ensure that the parties are correctly identified, the concerned authorities correctly listed, the jurisdiction and law of the contract etc. The boiler plate clauses are often overlooked as they are the “standard” or the “basic” inclusions, but that is what makes them essential. These are clauses that come to life in case any third party is involved in the workings and performance of the contract due to any reason whether in agreement of the parties or in the absence of agreement thereof.
Survival clauses on the other hand are required because they focus on preserving the intention of the contract and the interests of the parties once the contract is over. They are often related to maintaining confidentiality, preventing misuse of the residual knowledge, non-disclosure of otherwise private details of the parties etc. The survival clauses are essentially present to ensure that the parties remain bound to the provisions of preservation and maintaining security of information and knowledge.
Illustrative Examples The entire focus in order to review a service agreement should be whether the details contained therein are as desired by the parties and possible for the service provider to actually perform and complete. This focus is related to both the scope of service and schedule of delivery and completion of the service. Along with the other general details of a contract that everyone should be mindful of, the above particulars are of equal importance in a service agreement. The list however is not exhaustive and important clauses in a contract entirely depend upon the nature of a contract and hence, general due diligence should always be applied.
Boiler Plate Clause:
“Notices: All notices and other communication related to this Agreement shall be sent to the below mentioned authorities of the parties:”
Survival Clause:
“This clause shall survive the termination or expiry of this contract.”
