Export Control: Grant / Contract Language Examples

Compliance with Export Controls must be considered and achieved before engaging in many different types of activities, including: travel, research, shipping, collaborating with other universities, etc. Broad Export Control requirements are often embedded in many different types of University contracts such as:

• Contracts to purchase software, equipment or technology;
• Contracts to download free software;
• Material Transfer Agreements;
• Research or grant agreements with sponsors or other third-parties;
• Non-disclosure or confidentiality agreements (which may be embedded in grant agreements); or
• Affiliation Agreement or collaborations with other universities.

Members of the University community involved in the negotiation or signing of agreements should be aware of certain types of contract requirements that could subject the University to Export Control regulations or could jeopardize the University’s ability to claim Export Control exceptions. If you have questions regarding specific Export Control requirements, please contact the Export Control Officer for assistance.

• Broad Compliance Requirements:

  Many contracts for purchase of items, software or technology include broad language requiring the University to comply with Export Control laws and regulations. Examples of these clauses include:

  • Example 1: Customer shall not commit any act or cause any person to commit any act which would violate Export Control laws, rules or regulations and the customer shall take any and all actions within its ability to assure compliance with all such laws, rules or regulations.
  • Example 2: Institution must comply with all applicable laws including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.

  If you are involved in negotiations with this type of contract language, you are encouraged to engage the Export Control Officer for assistance in determining the appropriate language.

• Non-disclosure/Confidentiality Agreement:

  ISU is subject to the Freedom of Information Act and, therefore, has limited ability to enter into agreements that require confidentiality.  Non-disclosure and confidentiality agreements do not allow for the release of information. These types of clauses might be included in many different types of agreements such as equipment or software purchases and loans, technology licensing, data sharing agreements, and material transfer agreements. The Fundamental Research Exclusion (FRE) can be lost by accepting a contract clause that restricts access to or disclosure of research results. Information subject to a non-disclosure or confidentiality agreement would not typically qualify for the Fundamental Research Exclusion.

  Information (not items) arising from fundamental research is exempt from most Export Control regulations, meaning the University can share information more freely (i.e. would not be required to obtain licenses to share FRE-protected information with foreign nationals). If it is determined that information/data/technology covered by a confidentiality or non-disclosure agreement is "controlled"), then it is possible an export license may be needed before the controlled information may be disclosed to foreign researchers.

• Publication Restrictions:

  An agreement that limits the ability of a researcher to share information – other than a limited pre-publication review can also destroy the FRE. The FRE can be lost by accepting a contract clause that restricts access to or disclosure of research results other than a brief (approximately 90-day review) by sponsors to ensure the publication does not compromise patent rights or inadvertently divulge proprietary information. These agreements might include clauses that:

  • Give any party the right to approve publications;
  • Restricts participation of foreign nationals in conduct of research; or
  • Restrict participation in research and/or access to and disclosure of research results.

  It is important to negotiate all publication restrictions to protect ISU’s ability to use the FRE. Please consult with the Export Control Officer regarding any such language.

• Restrictions on Participation of Foreign Nationals:

  Many projects, especially projects with a military component, include requirements that limit or prohibit individuals (faculty, students, collaborating researchers, etc.) from performing work, accessing research or technical information, or completing other tasks. An example of this type of requirement occurs in the Federal Acquisition Regulation language applicable to military contracts which states:

  Equipment and technical data generated or delivered under this contract are controlled by the International Traffic in Arms Regulation (ITAR), 22 CFR Sections 121 through 128. An export license is required before assigning any foreign source to perform work under this contract or before granting access to foreign persons to any equipment and technical data generated or delivered during performance (see 22 CFR Section 125). The Contractor shall notify the Contracting Officer and obtain written approval of the Contracting Officer prior to assigning or granting access to any work, equipment, or technical data generated or delivered under this contract to foreign persons or their representatives. The notification shall include the name and country of origin of the foreign person or representative, the specific work, equipment, or data to which the person will have access, and whether the foreign person is cleared to have access to technical data.

  Contractual restrictions like the above require the University to take additional steps to comply with Export Control restrictions, may limit how the University conducts its research, and may limit faculty member’s ability to share research.