Severability Clause

What is a severability clause?

A severability clause keeps the rest of a contract in force if a court or arbitrator finds one part of it invalid or unenforceable. To sever means to cut off. The bad part is cut out, and the rest stands.

It usually sits in the general section near the end of a master service agreement or terms of service, close to the entire agreement clause. A term usually fails because a law forbids it or because it is unconscionable (so one-sided that a court will not enforce it).

The clause tells a court what the parties wanted. It does not bind the court, which applies its own state's rules on when part of a contract can be cut out. In California, for example, Civil Code section 1599 says a contract with both lawful and unlawful objects is "void as to the latter and valid as to the rest." Other states have their own rules.

What it looks like in a vendor's terms

A typical clause reads like this:

If any provision of this Agreement is held invalid or unenforceable, that provision will be enforced to the maximum extent permitted, and the remaining provisions will remain in full force and effect.

• "to the maximum extent permitted": the bad term is trimmed, not dropped.
• "the remaining provisions": everything else still binds you, including the terms that favor the vendor.

Vendors write the middle part in three ways:

• Strike it. The Salesforce Main Services Agreement says the provision "will be deemed null and void, and the remaining provisions of this Agreement will remain in effect."
• Trim it. Zendesk and Atlassian say an invalid term will be "limited to the minimum extent necessary."
• Rewrite it. HubSpot's terms say the provision will be "deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision."

When a court will not sever

A severability clause does not guarantee that the rest survives. In Ramirez v. Charter Communications (July 2024), a case about an employment arbitration agreement, the California Supreme Court said a court should treat the clause "as an expression of the parties' intent," but that the parties "cannot divest a trial court of its discretion" to refuse. The court first asks whether "the central purpose of the contract is tainted with illegality." If it is, the court should refuse to enforce the agreement. If not, it asks whether cutting out the bad terms is enough, and whether "the interests of justice would be furthered" by enforcing the rest.

The same ruling also said there is no counting test: "no bright line rule requires a court to refuse enforcement if a contract has more than one unconscionable term."

That is California's test. Courts in other states apply their own, so the governing law clause decides which one you get.

Arbitration clauses get special treatment. Under federal arbitration law, the US Supreme Court held in Buckeye Check Cashing v. Cardegna (2006) that "an arbitration provision is severable from the remainder of the contract." Some vendor terms also give the arbitration clause its own rule. Dropbox's terms, for example, say that if a finding of partial illegality or unenforceability "would allow class or representative arbitration," the whole arbitration section becomes unenforceable. That ties the arbitration clause to the class action waiver.

Why it matters to you

Winning on one clause does not, by itself, end the contract. If a court strikes a term that favors the vendor, the rest still applies, including the limitation of liability and the renewal terms.

The wording changes the result. A strike clause removes the bad term. A rewrite clause asks the court to put a narrower version back in, so a struck term can return in a weaker form rather than vanish.

What to check

• Style: whether a bad term is struck, trimmed or rewritten.
• Scope: whether it covers order forms too. HubSpot's applies to "this Agreement or an Order Form."
• Arbitration: whether the arbitration section has its own severability rule, and what happens if the class action waiver fails.
• Your key terms: if a term you negotiated for, such as a price cap or a data deletion promise, were struck, whether the deal would still work for you.
• Governing law: which state's rules on severance apply. See governing law.

How Venpo helps

Venpo watches your vendors' terms of service and other public legal pages and emails you a plain-English alert when one changes, such as a new arbitration section with its own all-or-nothing rule. Each vendor's change history keeps a redline of every version, so you can show which terms applied when a dispute began.