Export Control

Export Control

A panoply of federal laws and regulations restrict the transmission, transfer, or sharing of technical information and data originating from the U.S. to foreign counties. Accordingly, parties to an NDA may desire to include terms addressing compliance with such “export control” laws, particularly if one of the parties is a foreign person or entity:

Exemplar N12-1

In cases where Confidential Information is controlled under the export laws of the United States or another nation, Recipient agrees to implement measures to ensure that employees of nationality foreign to such laws are legally authorized to receive such information, provided that such measures do not contravene any governing U.S. law or policy. An export is deemed to take place when information is released to a foreign national wherever located.

Exemplar N12-2

Certain of Disclosing Party's Confidential Information may be restricted from export to foreign entities or foreign nationals under laws and regulations of the United States Government ("Restricted Information"). Disclosing Party shall advise Receiving Party in advance if it proposes to disclose any Restricted Information pursuant to this Agreement, and Receiving Party shall not thereafter knowingly disclose such Restricted Information to any foreign entity or foreign national (even if such foreign entity or foreign national is a Personnel or Affiliate of Receiving Party or other third party otherwise authorized to receive Disclosing Party's Confidential Information pursuant to this Agreement) without Receiving Party first obtaining the appropriate export license from the United States Government; provided, that if the United States Government requires such license, the Parties shall cooperate in obtaining such license and upon obtaining the same shall comply with such license and all laws and regulations applicable thereto. For this purpose, Receiving Party shall keep accurate and complete records of all persons and entities to whom it provides access to any of Disclosing Party's Restricted Information.

The following exemplar provides a list of specific prohibited actions relating to the transfer of confidential information to a foreign national/entity:

Exemplar N12-3

Confidential Information subject hereto may be controlled under U.S. Export Administration Regulations (currently found at 15 C.F.R Parts 730 through 774 including Supplements thereof, for full text, also visit www.gpo.gov/bis/ear/ear_data.html - this information is provided just for Contracting Party’s convenience with no warranty, including without limitation, the warranty of the accuracy of the information therein) and/or subject to the approval of the U.S. State Department or U.S. Department of Commerce prior to export. Each party agrees that it will not export or re-export any information it receives under this Agreement except in compliance with all applicable export laws and regulations and, if applicable, with express prior authorization from the Discloser of that information. Without limiting the generality of the foregoing, the Recipient agrees that it will not take any of the following actions with respect to the countries and groups referenced below (as same may be modified from time to time) unless authorized by applicable law or regulations:

a. Re-export or release the technology, or the software or the source code for the software to a national of a country in Groups D:1 or E:2 (currently found at Supplement No.1 to 15 C.F.R. Part 740),

b. Export to Country Groups D:1 or E:2 the direct product of the technology, or the software or the source code for the software, if such direct product is subject to national security controls in the Commodity Control List issued by the U.S. Bureau of Industry and Security (the “CCL”), or

c. Export to Country Groups D:1 or E:2 the direct item produced from a plant (manufacturing site) or major component thereof, if such direct product is subject to national security controls in the CCL.