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Export Control Clauses In Software Agreements

In addition to physical goods, the technology (and technological knowledge) used for the production, development or use of the products concerned is also subject to export controls. The right to control exports can therefore be very relevant to confidentiality agreements. However, “generally available” technologies (for example. B published or scientifically patented) and “fundamental scientific research” are excluded from export rules. 3. I imagine that any agency that regularly transfers technology would have or should have sufficient internal knowledge of the export controls applicable to international technology transfer, and that ignorant issues should not be tolerated. The truth is that the U.S. export control system, despite its judicial scope, is relatively benign: very few technologies and very few destinations require a specific U.S. license, they are subject to only flat-rate licenses. In my experience, the real problems are encryption technology and exports to a handful of rogue “usual suspect” states (a nicely declining list). Transactions that include places like this, in the phrase dear to our Securities and Exchange Commission, “exercise caution.” From time to time, the US authorities take action against foreign authorities for breach of the EAR.

The examples we may have found appear to be directly related to security or military intervention (such as the re-export of technology used in drone aircraft to Iran). We found no information suggesting that the U.S. authorities are interested in technical non-compliance with the EAR if the non-compliant company does not participate in such activities. For this reason, if the software in question is unlikely to have security or military use, we expect there to be a limited risk that the U.S. authorities will attempt to prosecute a foreign licensee for non-compliance with the EAR that occurs outside the United States. The clause appears to come from a U.S. national contract where similar clauses are customary. It has been clumsily applied to an international treaty and your points are well taken. However, in the specific case of a U.S. licensee and a licensed United Kingdom, a clause on this point (albeit better formulated) is almost inevitable. An important “exception” is that of elements that include “publicly available” technologies and software.

The term “publicly available” is defined in 15 CFRs. It includes the technologies and software contained in some patent applications, as well as technologies and software that have been (or will be) published, making them “accessible to the interested public in all its forms.”

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