In keeping with the world being a global village, it is now commonplace to engage in cross-border agreements for the importation or transfer of technology for research, development, or Commercial purposes.
Agreements for the transfer of new or advanced technologies are now even more frequent with the rise of the Nigerian Tech sector, necessitating the need for a deeper level of public awareness on what the law says concerning agreements for the transfer of such new technologies.
This article will thus be focused on the subtopics of :
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– The Regulatory Framework governing Technology transfer in Nigeria.
– The requirements for registration of a transfer of technology into Nigeria.
– The types of agreements permissible for the purpose of being registered as Technology transfer agreements.
– The procedure for the Registration or Technology Transfer agreements.
– The Legal effects of non-registration of a Technology Transfer agreement.
What are the components of the Regulatory Framework governing Technology Transfer in Nigeria?
The chief Regulatory agency governing the transfer if technology into Nigeria is the National Office For Technology Acquisition & Promotion (NOTAP) which was created by the National Office For Technology Acquisition & Promotion Act(NOTAPA), which makes it mandatory to register with NOTAP all agreements for the transfer if Foreign Technology into Nigeria.
Transferred technology may also be registered as a patent or trademark in Nigeria.
What are the types of agreements that are eligible for registration with NOTAP?
The following agreements are eligible for registration with NOTAP as Technology Transfer agreements:-
– Agreements for the use of Trademarks (this can apply to SaaS use agreements).
– Agreements for the right to use patented inventions.
– Agreements for the supply of technical expertise in the form of technical plans, diagrams, operating manuals or any other form of technical assistance.
– Agreements for the supply of plant & machinery.
– Agreements for the provision of technical/managerial personnel assistance.
Is there a Regulatory time period within which Technology Transfer agreements must be registered with NOTAP?
Yes there is. Agreements for the transfer of technology into Nigeria are to be registered within 60days of the execution/signing of the contract.
What is the procedure for the registration of a Technology Transfer agreement with NOTAP?
The registration of an agreement with NOTAP is to be commenced by the transferee’s legal representative submitting to NOTAP a duly completed Regulatory NOTAP application form to which the following is to be attached :
– A bank draft for an application fee payable to the Director of NOTAP.
– The MEMART (Memorandum/Articles of Association) of the transferee.
– 2 Certified True Copies (CTCs) of the agreement to be registered.
– 2 copies of duly completed questionnaires (Form NOTAP2-84).
– A copy of the transferee’s feasibility study.
– a CTC of the transferee’s Certificate of Incorporation or annual audit account report
– Upon due scrutinization and approval by NOTAP, the transferee is to then pay a registration fee to NOTAP.
On what grounds can a registration application be refused?
A contract sought to be registered with NOTAP can be rejected on the following grounds:-
– If the Technology to be transferred is already available in Nigeria.
– If the Technology cost price is not in line with general market values in Nigeria.
– If there is a term in the contract stating that the transferee is to only acquire equipment, tools or raw materials exclusively from the transferor or any other designated person.
– If there is a clause in the agreement that requires full payment for a Technology yet to be exploited by the transferee.
– If there is a contract terms that entitles the transferor to intervene unnecessarily in the execution of the contract.
– Where there is a clause in the contract that requires the transferee to assign or transfer in return to the transferor, intellectual property and technology procured by the transferee without any input from the transferor.
– Where there is a limitation clause in the agreement restricting the transferee’s right to sell its products to anyone else apart from the transferor.
What is the legal effect of non-registration of a Technology Transfer agreement with NOTAP?
The major effect of non-registration of a Technology Transfer agreement with NOTAP or is that no payment will be made to anyone outside Nigeria on the authority of the Central Bank of Nigeria (CBN) , any licensed bank in Nigeria, or the Federal Ministry of Finance regarding due payments under a non-registered contract that would still not be void under Nigerian Law.
Conclusion :- A better understanding of the law on the issue of Technology Transfer agreements as well as Trademark Registration and Contract Registration eligibility with NOTAP should be gotten through diligent Legal advice and representation, particularly for businesses in the Tech sector.