Preparing an export contract – please note! 2017
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An overview of some of the issues encountering when exporting in general, and in particular with regard to export from Israel
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Preparing an export contract – please note! 2017
- 1. PREPARING AN EXPORT CONTRACT – PLEASE NOTE! Beverley Zabow, Adv. & Notary Israel Export Institute, December 2017
- 2. ABOUT ME Member of the Israeli Bar since 2006 Israel Export Institute since 2014 Ex-big law Hi-tech specialist E-mail: beverley@ht-ip-law.com Tel: 054-4877985
- 3. AGENDA The basics of export contracts Typical hi-tech contracts Please Note
- 4. THE BASICS
- 5. THE BASICS What are you selling? Who are you selling to? Where are you selling?
- 6. THE BASICS - COMMERCIAL CONDITIONS IMCO TERMS EXCLUSIVE OR NOT WHO IS RESPONSIBLE FOR WHAT PAYMENT TERMS MILESTONES TERM
- 7. THE BASICS - LEGAL CONDITIONS LIMITATION OF LIABILITY INDEMNITY WARRANTY NON-COMPETE TERMINATION/COMPENSATION* GOVERNING LAW
- 9. TYPICAL HI-TECH CONTRACTS (1) Agency Distributor Representative Reseller Integrator Cooperation agreement
- 10. TYPICAL HI-TECH CONTRACTS (2) Terms and Conditions Website Applications Sale of goods and services Privacy Policy Website Applications Service provider
- 11. TYPICAL HI-TECH AGREEMENTS License EULA Services SaaS SLA
- 12. TYPICAL HI-TECH AGREEMENTS OEM (Original Equipment Manufacturer) VAR (Value Added Reseller)
- 14. PLEASE NOTE ! ANTI-BRIBERY FCPA – Foreign Corrupt Practices Act OECD Anti-bribery Convention UK Bribery Act Israeli Law Recommend: Company anti-bribery policy & undertaking in contracts
- 15. PLEASE NOTE ! SECURITY CONTROLS For goods, services and knowledge incl. dual use equipment Registration of company in the export register Registration of goods Prior to marketing need marketing license Export license Final user’s declaration
- 16. PLEASE NOTE ! GDPR! Does it apply to you? Do you collect, Receive, transmit, use, store or otherwise process personal data of EU persons? Do you offer goods or services to individuals in the EU? Do you monitor behavior of individuals in the EU? Do you do any form of automated processing intended to evaluate certain personal aspects of an individual?
- 17. PLEASE NOTE ! GDPR (2) Lawful base for processing Explicit Consent Required to perform a contract Necessary for the purposes of legitimate interests pursued by the controller or a third party, except where such interests are overridden by the interests, rights or freedoms of the data subject
- 18. PLEASE NOTE ! GDPR (3) The GDPR provides the following rights for individuals: The right to be informed The right of access The right to rectification The right to erase The right to restrict processing The right to data portability The right to object Rights in relation to automated decision making and profiling.
- 19. PLEASE NOTE ! GDPR (4) Recommend DPIA –Data Privacy Impact Assessment Data Privacy Policy
- 20. PLEASE NOTE ! MONEY LAUNDERING The process of making illegally gained proceeds appear legal Red flags Ministry of Justice guidelines Secretive client, incomplete information Cash Price is not an issue Changes seller/lawyer/bank frequently Using someone else’s letterhead/bank account Unusual speed/short -cuts requested
Editor's Notes
- Product, IP, services (usually all three) End user, reseller, who is your counterparty for warranty In Israel – applicable law, jurisdiction; over sea…. Not consumer product then easier.
- Example – of ACID Cyber company. Sells Cyber services….as SaaS and App.
- Services – like red-hat, or db SaaS – like ACID SLA – like ACID
- A value-added reseller (VAR) is a company that purchases the original or component product from the OEM and then adds to its value by adding features or services to the product, or by incorporating it into a larger product, before finally reselling it, most commonly to end users.
- FCPA Forbids bribery to foreign officials OECD forbids bribery of foreign officials Since 2010 Act – bribery in general – giving or receiving, bribery of public officials; failure to prevent bribery (all commercial organizations which have business in the UK) he Act has been described as "the toughest anti-corruption legislation in the world
- he GDPR applies to processing carried out by organizations operating within the EU. It also applies to organizations outside the EU that offer goods or services to individuals in the EU. A controller determines the purposes and means of processing personal data. A processor is responsible for processing personal data on behalf of a controller. The GDPR does not apply to certain activities including processing covered by the Law Enforcement Directive, processing for national security purposes and processing carried out by individuals purely for personal/household activities. The GDPR applies to ‘personal data’ meaning any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier. This definition provides for a wide range of personal identifiers to constitute personal data, including name, identification number, location data or online identifier, reflecting changes in technology and the way organizations collect information about people. The GDPR applies to both automated personal data and to manual filing systems where personal data are accessible according to specific criteria. This could include chronologically ordered sets of manual records containing personal data. Personal data that has been pseudonymised – eg key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual. Sensitive personal data The GDPR refers to sensitive personal data as “special categories of personal data” (see Article 9). The special categories specifically include genetic data, and biometric data where processed to uniquely identify an individual.
- Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of consent by default.
- The right to be informed encompasses your obligation to provide ‘fair processing information’, typically through a privacy notice. Individuals have the right to access their personal data and supplementary information. The right to data portability allows individuals to obtain and reuse their personal data for their own purposes across different services. It allows them to move, copy or transfer personal data easily from one IT environment to another in a safe and secure way, without hindrance to usability. Individuals have the right to object to: processing based on legitimate interests or the performance of a task in the public interest/exercise of official authority (including profiling); direct marketing (including profiling); and processing for purposes of scientific/historical research and statistics. he GDPR provides safeguards for individuals against the risk that a potentially damaging decision is taken without human intervention. Identify whether any of your processing operations constitute automated decision making and consider whether you need to update your procedures to deal with the requirements of the GDPR.