ITAR Compliance and Technology Law for the US Market

Software-as-a-Service contracts in the US market follow different standards to those in Germany: Licence models differ in terms of scope of use and pricing structure; service level agreements often define availability and response times much more strictly; and liability clauses limit claims according to different standards than those under German law governing general terms and conditions. Anyone who simply translates a German SaaS contract often thereby assumes liability risks that are not provided for under US law, or forgoes limitations of liability that would be customary there.

We draft and review SaaS contracts in strict accordance with US standards – from the licensing structure and service level agreements right through to limitations of liability and warranties. This creates a contractual framework that stands up to scrutiny in the US market whilst also aligning with your business model.

Deep-tech and AI business models bring together IP protection, data law and investor agreements. Patents and know-how must be structured in such a way that they hold up in the US market, whilst AI applications also raise data protection issues: what training data was used, what rules apply to data flows between the EU and the US, and what requirements a US investor imposes regarding the documentation of these issues prior to a funding round. Anyone who overlooks these intersections will find themselves having to explain themselves, at the latest during the due diligence phase of an investment round.

We support deep-tech and AI companies at the intersection of technology, intellectual property law and data law – from safeguarding intellectual property to drafting investor agreements that stand up to scrutiny on these issues.

US-related armaments and defence technology are subject to either the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR) – two distinct export control regimes, each with its own licensing procedures, reporting requirements and penalties for non-compliance. Whether a product or technology falls under ITAR or EAR determines which deliveries, collaborations and data transfers require authorisation, and what compliance structure a company must maintain on an ongoing basis. For German suppliers and business partners with US-related activities, ITAR compliance is therefore not a one-off assessment, but an ongoing task that affects every new delivery, every new collaboration and every new employee joining the company.

We classify products and technologies under ITAR or EAR, establish compliance frameworks for ongoing export transactions, and provide support with licensing procedures and reporting obligations. Our ITAR consultancy is aimed at German companies that cooperate with US partners, supply goods to the US or use US technology – from the initial assessment through to ongoing export control.

Contracts with US authorities and the US Department of Defence are subject to their own procurement and contractual rules, which differ from those governing US civilian contracts and, even more so, from German public procurement law: they have their own certification requirements, their own reporting obligations and their own rules on subcontracting. Investments from Germany in US companies involved in security-related activities may also trigger a review by the Committee on Foreign Investment in the United States (CFIUS) – with the result that a transaction can only be completed once it has been approved.

We prepare German suppliers and partners for the requirements of US government contracting and assess at an early stage whether and how CFIUS affects your project – before this becomes a time risk for the contract or transaction.