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(Revised January 23, 2006)

 



 252.227-7000 Non-Estoppel.
 252.227-7001 Release of Past Infringement.
 252.227-7002 Readjustment of Payments.
 252.227-7003 Termination.
 252.227-7004 License Grant.
 252.227-7005 License Term.
 252.227-7006 License Grant---Running Royalty.
 252.227-7007 License Term--Running Royalty.
 252.227-7008 Computation of Royalties.
 252.227-7009 Reporting and Payment of Royalties.
 252.227-7010 License to Other Government Agencies.
 252.227-7011 Assignments.
 252.227-7012 Patent License and Release Contract.
 252.227-7013 Rights in Technical Data--Noncommercial Items.
 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial
 252.227-7015 Technical Data--Commercial Items.
 252.227-7016 Rights in Bid or Proposal Information.
 252.227-7017 Identification and Assertion of Use, Release, or Disclosure Restrictions.
 252.227-7018 Rights in Noncommercial Technical Data and Computer Software--Small Business Innovation Research (SBIR) Program.
 252.227-7019 Validation of Asserted Restrictions--Computer Software.
 252.227-7020 Rights in Special Works.
 252.227-7021 Rights in Data--Existing Works.
 252.227-7022 Government Rights (Unlimited).
 252.227-7023 Drawings and Other Data to Become Property of Government.
 252.227-7024 Notice and Approval of Restricted Designs.
 252.227-7025 Limitations on the Use or Disclosure of Government-Furnished
 252.227-7026 Deferred Delivery of Technical Data or Computer Software.
 252.227-7027 Deferred Ordering of Technical Data or Computer Software.
 252.227-7028 Technical Data or Computer Software Previously Delivered to the Government.
 252.227-7029 Reserved.
 252.227-7030 Technical Data--Withholding of Payment.
 252.227-7032 Rights in Technical Data and Computer Software (Foreign).
 252.227-7033 Rights in Shop Drawings.
 252.227-7034 Patents--Subcontracts.
 252.227-7035 Reserved.
 252.227-7036 Reserved.
 252.227-7037 Validation of Restrictive Markings on Technical Data.
 252.227-7038 Reserved.
 252.227-7039 Patents--Reporting of Subject Inventions.


252.227-7000  Non-Estoppel.

As prescribed at 227.7009-1, insert the following clause in patent releases, license agreements, and assignments:

 

NON-ESTOPPEL (OCT 1966)

 

The Government reserves the right at any time to contest the enforceability, validity, scope of, or the title to any patent or patent application herein licensed without waiving or forfeiting any right under this contract.

 

(End of clause)

 

252.227-7001  Release of Past Infringement.

As prescribed at 227.7009-2(a), insert the following clause in patent releases, license agreements, and assignments:

 

RELEASE OF PAST INFRINGEMENT (AUG 1984)

 

The Contractor hereby releases each and every claim and demand which he now has or may hereafter have against the Government for the manufacture or use by or for the Government prior to the effective date of this contract, of any inventions covered by (i) any of the patents and applications for patent identified in this contract, and (ii) any other patent or application for patent owned or hereafter acquired by him, insofar as and only to the extent that such other patent or patent application covers the manufacture, use, or disposition of (description of subject matter).*

 

(End of clause)

 

*Bracketed portions of the clause may be omitted when not appropriate or not encompassed by the release as negotiated.

 

252.227-7002  Readjustment of Payments.

As prescribed at 227.7009-2(b), insert the following clause in patent releases, license agreements, and assignments:

 

READ JUSTMENT OF PAYMENTS (OCT 1966)

 

      (a)  If any license, under substantially the same patents and authorizing substantially the same acts which are authorized under this contract, has been or shall hereafter be granted within the United States, on royalty terms which are more favorable to the licensee than those contained herein, the Government shall be entitled to the benefit of such more favorable terms with respect to all royalties accruing under this contract after the date such more favorable terms become effective, and the Contractor shall promptly notify the Secretary in writing of the granting of such more favorable terms.

 

      (b)  In the event any claim of any patent hereby licensed is construed or held invalid by decision of a court of competent jurisdiction, the requirement to pay royalties under this contract insofar as its arises solely by reason of such claim, and any other claim not materially different therefrom, shall be interpreted in conformity with the court's decision as to the scope of validity of such claims; Provided, however, that in the event such decision is modified or reversed on appeal, the requirement to pay royalties under this contract shall be interpreted in conformity with the final decision rendered on such appeal.

 

(End of clause)

 

252.227-7003  Termination.

As prescribed at 227.7009-2(c), insert the following clause in patent releases, license agreements, and assignments:

 

TERMINATION (AUG 1984)

 

Notwithstanding any other provision of this contract, the Government shall have the right to terminate the within license, in whole or in part, by giving the Contractor not less than thirty (30) days notice in writing of the date such termination is to be effective; provided, however, that such termination shall not affect the obligation of the Government to pay royalties which have accrued prior to the effective date of such termination.

 

(End of clause)

 

252.227-7004  License Grant.

As prescribed at 227.7009-3(a), insert the following clause in patent releases, license agreements, and assignments:

 

LICENSE GRANT (AUG 1984)

 

      (a)  The Contractor hereby grants to the Government an irrevocable, nonexclusive, nontransferable, and paid up license under the following patents, applications for patent, and any patents granted on such applications, and under any patents which may issue as the result of any reissue, division or continuation thereof, to practice by or cause to be practiced for the Government throughout the world, any and all of the inventions thereunder, in the manufacture and use of any article or material, in the use of any method or process, and in the disposition of any article or material in accordance with law:

 

U.S. Patent No. ___________________

Date _____________________

 

 

Application Serial No. _____________

Filing Date _______________

 

together with corresponding foreign patents and foreign applications for patents, insofar as the Contractor has the right to grant licenses thereunder without incurring an obligation to pay royalties or other compensation to others solely on account of such grant.

 

      (b)  No rights are granted or implied by the agreement under any other patents other than as provided above or by operation of law.

 

      (c)  Nothing contained herein shall limit any rights which the Government may have obtained by virtue of prior contracts or by operation of law or otherwise.

 

(End of clause)

 

252.227-7005  License Term.

As prescribed at 227.7009-3(b), insert one of the following clauses in patent releases, license agreements, and assignments:

 

LICENSE TERM (OCT 2001)

 

ALTERNATE I (AUG 1984)

The license hereby granted shall remain in full force and effect for the full term of each of the patents referred to in the “License Grant” clause of this contract and any and all patents hereafter issued on applications for patent referred to in such “License Grant” clause.

 

ALTERNATE II (OCT 2001)

The license hereby granted shall terminate on the ______ day of _______________, ____; Provided, however, that said termination shall be without prejudice to the completion of any contract entered into by the Government prior to said date of termination or to the use or disposition thereafter of any articles or materials manufactured by or for the Government under this license.

 

252.227-7006  License Grant---Running Royalty.

As prescribed at 227.7009-4(a), insert the following clause in patent releases, license agreements, and assignments:

 

LICENSE GRANT--RUNNING ROYALTY (AUG 1984)

 

      (a)  The Contractor hereby grants to the Government, as represented by the Secretary of ______________, an irrevocable, nonexclusive, nontransferable license under the following patents, applications for patent, and any patents granted on such applications, and under any patents which may issue as the result of any reissue, division, or continuation thereunder to practice by or cause to be practiced for the Department of ______________, throughout the world, any and all of the inventions thereunder in the manufacture and use of any article or material, in the use of any method or process, and in the disposition of any article or material in accordance with law:

 

U.S. Patent No. ___________________

Date _____________________

 

 

Application Serial No. _____________

Filing Date _______________

 

together with corresponding foreign patents and foreign applications for patent, insofar as the Contractor has the right to grant licenses thereunder without incurring an obligation to pay royalties or other compensation to others solely on account of such grant.

 

      (b)  No rights are granted or implied by the agreement under any other patents other than as provided above or by operation of law.

 

      (c)  Nothing contained herein shall limit any rights which the Government may have obtained by virtue of prior contracts or by operation of law or otherwise.

 

(End of clause)

 

252.227-7007  License Term--Running Royalty.

As prescribed at 227.7009-4(b), insert the following clause in patent releases, license agreements, and assignments:

 

LICENSE TERM--RUNNING ROYALTY (AUG 1984)

 

The license hereby granted shall remain in full force and effect for the full term of each of the patents referred to in the “License Grant” clause of this contract and any and all patents hereafter issued on applications for patent referred to above unless sooner terminated as elsewhere herein provided.

 

(End of clause)

 

252.227-7008  Computation of Royalties.

As prescribed at 227.7009- 4(c), insert the following clause in patent releases, license agreements, and assignments:

 

COMPUTATION OF ROYALTIES (AUG 1984)

 

Subject to the conditions hereinafter stated, royalties shall accrue to the Contractor under this agreement on all articles or materials embodying, or manufactured by the use of, any or all inventions claimed under any unexpired United States patent licensed herein, upon acceptance thereof by the Department of  __________, at the rate of ____ percent of the net selling price of such articles or materials (amount) per (name of item) * whether manufactured by the Government or procured under a fixed price contract, and at the rate of (amount) per (name of item) acquired or manufactured by a Contractor performing under a cost-reimbursement contract.  With respect to such articles or materials made by the Department of __________, “net selling price,” as used in this paragraph, means the actual cost of direct labor and materials without allowance for overhead and supervision.

 

(End of clause)

 

*Use bracketed matter as appropriate.

 

252.227-7009  Reporting and Payment of Royalties.

As prescribed at 227.7009-4(d), insert the following clause in patent releases, license agreements, and assignments:

 

REPORTING AND PAYMENT OF ROYALTIES (AUG 1984)

 

      (a)  The (procuring office) shall, on or before the sixtieth (60th) day next following the end of each yearly* period ending _________________ during which royalties have accrued under this license, deliver to the Contractor, subject to military security regulations, a report in writing furnishing necessary information relative to royalties which have accrued under this contract.

 

      (b)  Royalties which have accrued under this contract during the yearly* period ending ________________ shall be paid to the Contractor (if appropriations therefor are available or become available) within sixty (60) days next following the receipt of a voucher from the Contractor submitted in accordance with the report referred to in (a) of this clause; Provided, that the Government shall not be obligated to pay, in respect of any such yearly period, on account of the combined royalties accruing under this contract directly and under any separate licenses granted pursuant to the “License to Other Government Agencies” clause (if any) of this contract, an amount greater than ________ dollars ($_________), and if such combined royalties exceed the said maximum yearly obligation, each department or agency shall pay a pro rata share of the said maximum yearly obligation as determined by the proportion its accrued royalties bear to the combined total of accrued royalties.

 

(End of clause)

 

*The frequency, date, and length of reporting periods should be selected as appropriate to the particular circumstances of the contract.

 

252.227-7010  License to Other Government Agencies.

As prescribed at 227.7009-4(e), insert the following clause in patent releases, license agreements, and assignments:

 

LICENSE TO OTHER GOVERNMENT AGENCIES (AUG 1984)

 

The Contractor hereby agrees to grant a separate license under the patents, applications for patents, and improvements referred to in the “License Grant” clause of this contract, on the same terms and conditions as appear in this license contract, to any other department or agency of the Government at any time on receipt of a written request for such a license from such department or agency; Provided, however, that as to royalties which accrue under such separate licenses, reports and payments shall be made directly to the Contractor by each such other department or agency pursuant to the terms of such separate licenses.  The Contractor shall notify the Licensee hereunder promptly upon receipt of any request for license hereunder.

 

(End of clause)

 

252.227-7011  Assignments.

As prescribed at 227.7010, insert the following clause in assignments.

 

ASSIGNMENT (AUG 1984)

 

The Contractor hereby conveys to the Government, as represented by the Secretary

of ____________, the entire right, title, and interest in and to the following patents (and applications for patent), in and to the inventions thereof, and in and to all claims and demands whatsoever for infringement thereof heretofore accrued, the same to be held and enjoyed by the Government through its duly appointed representatives to the full end of the term of said patents (and to the full end of the terms of all patents which may be granted upon said applications for patent, or upon any division, continuation- in-part or continuation thereof):

 

U.S. Patent No.

 

 

Date

 

 

Name of Inventor

 

 

U.S. Application Serial No.

 

Filing Date

 

 

Name of Inventor

 

 

 

together with corresponding foreign patents and applications for patent insofar as the Contractor has the right to assign the same.

 

(End of clause)

 

252.227-7012  Patent License and Release Contract.

As prescribed at 227.7012, insert the following clause in patent releases, license agreements, and assignments:

 

_______________________ (Contract No.)

 

PATENT LICENSE AND RELEASE CONTRACT (SEP 1999)

 

THIS CONTRACT is effective as of the ____ day of [month, year], between the UNITED STATES OF AMERICA (hereinafter called the Government), and _________
____________________ (hereinafter called the Contractor), (a corporation organized and existing under the laws of the State of _______________), (a partnership consisting of _____________________), (an individual trading as ____________________), of the City of _______________________, in the State of _________________.

 

WHEREAS, the Contractor warrants that it has the right to grant the within license and release, and the Government desires to procure the same, and

 

WHEREAS, this contract is authorized by law, including 10 U.S.C. 2386.

 

NOW THEREFORE, in consideration of the grant, release and agreements hereinafter recited, the parties have agreed as follows:

 

              ARTICLE l.  License Grant.*

              (Insert the clause at 252.227-7004 for a paid up license, or the clause at 252.227-7006 for a license on a running royalty basis.)

 

              ARTICLE 2.  License Term.*

              (Insert the appropriate alternative clause at 252.227-7005 for a paid up license, or the clause at 252.227-7007 for a license on a running royalty basis.)

 

              ARTICLE 3.  Release of Past Infringement.

              (Insert the clause at 252.227-7001.)

 

              ARTICLE 4.  Non-Estoppel.

              (Insert the clause at 252.227-7000.)

 

              ARTICLE 5.  Payment.

              The Contractor shall be paid the sum of __________ Dollars ($________) in full compensation for the rights herein granted and agreed to be granted.  (For a license on a running royalty basis, insert the clause at 252.227-7006 in accordance with the instructions therein, and also the clause as specified at 252.227-7002 and 252.227-7009 and 252.227-7010.)

 

             

              ARTICLE 6.  Covenant Against Contingent Fees.

              (Insert the clause at FAR 52.203-5.)

 

              ARTICLE 7.  Assignment of Claims.

              (Insert the clause at FAR 52.232-23.)

 

              ARTICLE 8.  Gratuities.

              (Insert the clause at FAR 52.203-3.)

 

              ARTICLE 9.  Disputes.

              (Insert the clause at FAR 52.233-1.)

 

              ARTICLE 10.  Successors and Assignees.

              This Agreement shall be binding upon the Contractor, its successors** and assignees, but nothing contained in this Article shall authorize an assignment of any claim against the Government otherwise than as permitted by law.

 

              IN WITNESS WHEREOF, the parties hereto have executed this contract.

 

                    THE UNITED STATES OF AMERICA

 

By

 

 

 

Date

 

 

 

(Signature and Title of Contractor

Representative)  _______________

By

 

 

 

Date

 

 

 

 

*If only a release is procured, delete this article; if an assignment is procured, use the clause at 252.227-7011.

 

**When the Contractor is an individual, change “successors” to “heirs”; if a partnership, modify appropriately.

 

(End of clause)

 

252.227-7013  Rights in Technical Data--Noncommercial Items.

As prescribed in 227.7103-6(a), use the following clause:

 

RIGHTS IN TECHNICAL DATA--NONCOMMERCIAL ITEMS (NOV 1995)

 

      (a)  Definitions.  As used in this clause:

 

              (1)  “Computer data base” means a collection of data recorded in a form capable of being processed by a computer.  The term does not include computer software.

 

              (2)  “Computer program” means a set of instructions, rules, or routines recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

 

 

              (3)  “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated, or recompiled.  Computer software does not include computer data bases or computer software documentation.

 

              (4)  “Computer software documentation” means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

 

              (5)  “Detailed manufacturing or process data” means technical data that describe the steps, sequences, and conditions of manufacturing, processing or assembly used by the manufacturer to produce an item or component or to perform a process.

 

              (6)  “Developed” means that an item, component, or process exists and is workable.  Thus, the item or component must have been constructed or the process practiced.  Workability is generally established when the item, component, or process has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended.  Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art.  To be considered “developed,” the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component, or process be actually reduced to practice within the meaning of Title 35 of the United States Code.

 

              (7)  “Developed exclusively at private expense” means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract, or any combination thereof.

 

                    (i)  Private expense determinations should be made at the lowest practicable level.

 

                    (ii)  Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

 

              (8)  “Developed exclusively with government funds” means development was not accomplished exclusively or partially at private expense.

 

              (9)  “Developed with mixed funding” means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

 

              (10)  “Form, fit, and function data” means technical data that describes the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

 

              (11)  “Government purpose” means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations, or sales or transfers by the United States Government to foreign governments or international organizations.  Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so.

 

              (12)  “Government purpose rights” means the rights to—

 

                    (i)  Use, modify, reproduce, release, perform, display, or disclose technical data within the Government without restriction; and

 

                    (ii)  Release or disclose technical data outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose that data for United States government purposes.

 

              (13)  “Limited rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government.  The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or authorize the technical data to be used by another party, except that the Government may reproduce, release or disclose such data or authorize the use or reproduction of the data by persons outside the Government if reproduction, release, disclosure, or use is—

 

                    (i)  Necessary for emergency repair and overhaul; or

 

                    (ii)  A release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the Government and is required for evaluational or informational purposes;

 

                    (iii)  Subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and

 

                    (iv)  The contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

 

              (14)  “Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation).  The term does not include computer software or data incidental to contract administration, such as financial and/or management information.

 

              (15)  “Unlimited rights” means rights to use, modify, reproduce, perform, display, release, or disclose technical data in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

 

      (b)  Rights in technical data.  The Contractor grants or shall obtain for the Government the following royalty free, world-wide, nonexclusive, irrevocable license rights in technical data other than computer software documentation (see the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause of this contract for rights in computer software documentation):

 

              (1)  Unlimited rights.  The Government shall have unlimited rights in technical data that are—

 

                    (i)  Data pertaining to an item, component, or process which has been or will be developed exclusively with Government funds;

 

                    (ii)  Studies, analyses, test data, or similar data produced for this contract, when the study, analysis, test, or similar work was specified as an element of performance;

 

                    (iii)  Created exclusively with Government funds in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes;

 

                    (iv)  Form, fit, and function data;

 

                    (v)  Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data);

 

                    (vi)  Corrections or changes to technical data furnished to the Contractor by the Government;

 

                    (vii)  Otherwise publicly available or have been released or disclosed by the Contractor or subcontractor without restrictions on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data to another party or the sale or transfer of some or all of a business entity or its assets to another party;

 

                    (viii)  Data in which the Government has obtained unlimited rights under another Government contract or as a result of negotiations; or

 

                    (ix)  Data furnished to the Government, under this or any other Government contract or subcontract thereunder, with—

 

                            (A)  Government purpose license rights or limited rights and the restrictive condition(s) has/have expired; or

 

                            (B)  Government purpose rights and the Contractor's exclusive right to use such data for commercial purposes has expired.

 

              (2)  Government purpose rights.

 

                    (i)  The Government shall have government purpose rights for a five-year period, or such other period as may be negotiated, in technical data—

 

                            (A)  That pertain to items, components, or processes developed with mixed funding except when the Government is entitled to unlimited rights in such data as provided in paragraphs (b)(ii) and (b)(iv) through (b)(ix) of this clause; or

 

                            (B)  Created with mixed funding in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes.

 

                    (ii)  The five-year period, or such other period as may have been negotiated, shall commence upon execution of the contract, subcontract, letter contract (or similar contractual instrument), contract modification, or option exercise that required development of the items, components, or processes or creation of the data described in paragraph (b)(2)(i)(B) of this clause.  Upon expiration of the five-year or other negotiated period, the Government shall have unlimited rights in the technical data.

 

                    (iii)  The Government shall not release or disclose technical data in which it has government purpose rights unless—

 

                            (A)  Prior to release or disclosure, the intended recipient is subject to the non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS); or

 

                            (B)  The recipient is a Government contractor receiving access to the data for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

 

                    (iv)  The Contractor has the exclusive right, including the right to license others, to use technical data in which the Government has obtained government purpose rights under this contract for any commercial purpose during the time period specified in the government purpose rights legend prescribed in paragraph (f)(2) of this clause.

 

              (3)  Limited rights.

 

                    (i)  Except as provided in paragraphs (b)(1)(ii) and (b)(1)(iv) through (b)(1)(ix) of this clause, the Government shall have limited rights in technical data—

 

                            (A)  Pertaining to items, components, or processes developed exclusively at private expense and marked with the limited rights legend prescribed in paragraph (f) of this clause; or

 

                            (B)  Created exclusively at private expense in the performance of a contract that does not require the development, manufacture, construction, or production of items, components, or processes.

 

                    (ii)  The Government shall require a recipient of limited rights data for emergency repair or overhaul to destroy the data and all copies in its possession promptly following completion of the emergency repair/overhaul and to notify the Contractor that the data have been destroyed.

 

                    (iii)  The Contractor, its subcontractors, and suppliers are not required to provide the Government additional rights to use, modify, reproduce, release, perform, display, or disclose technical data furnished to the Government with limited rights.  However, if the Government desires to obtain additional rights in technical data in which it has limited rights, the Contractor agrees to promptly enter into negotiations with the Contracting Officer to determine whether there are acceptable terms for transferring such rights.  All technical data in which the Contractor has granted the Government additional rights shall be listed or described in a license agreement made part of the contract.  The license shall enumerate the additional rights granted the Government in such data.

 

              (4)  Specifically negotiated license rights.  The standard license rights granted to the Government under paragraphs (b)(1) through (b)(3) of this clause, including the period during which the Government shall have government purpose rights in technical data, may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights than are enumerated in paragraph (a)(13) of this clause.  Any rights so negotiated shall be identified in a license agreement made part of this contract.

 

              (5)  Prior government rights.  Technical data that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the pre-existing rights, unless—

 

                    (i)  The parties have agreed otherwise; or

 

                    (ii)  Any restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.

 

              (6)  Release from liability.  The Contractor agrees to release the Government from liability for any release or disclosure of technical data made in accordance with paragraph (a)(13) or (b)(2)(iii) of this clause, in accordance with the terms of a license negotiated under paragraph (b)(4) of this clause, or by others to whom the recipient has released or disclosed the data and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor data marked with restrictive legends.

 

      (c)  Contractor rights in technical data.  All rights not granted to the Government are retained by the Contractor.

 

      (d)  Third party copyrighted data.  The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted data in the technical data to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data of the appropriate scope set forth in paragraph (b) of this clause, and has affixed a statement of the license or licenses obtained on behalf of the Government and other persons to the data transmittal document.

 

      (e)  Identification and delivery of data to be furnished with restrictions on use, release, or disclosure.

 

              (1)  This paragraph does not apply to restrictions based solely on copyright.

 

              (2)  Except as provided in paragraph (e)(3) of this clause, technical data that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure are identified in an attachment to this contract (the Attachment).  The Contractor shall not deliver any data with restrictive markings unless the data are listed on the Attachment.

 

              (3)  In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision.  Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled date for delivery of the data, in the following format, and signed by an official authorized to contractually obligate the Contractor:

 

Identification and Assertion of Restrictions on the Government's Use, Release,

or Disclosure of Technical Data.

 

                    The Contractor asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data should be restricted—

 

Technical Data

 

 

Name of Person

to be Furnished

Basis for

Asserted Rights

Asserting

With Restrictions*

Assertion**

Category***

Restrictions****

(LIST)

(LIST)

(LIST)

(LIST)

 

                    *If the assertion is applicable to items, components, or processes developed at private expense, identify both the data and each such item, component, or process.

 

                    **Generally, the development of an item, component, or process at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose technical data pertaining to such items, components, or processes.  Indicate whether development was exclusively or partially at private expense.  If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.

 

                    ***Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract, limited or government purpose rights under this or a prior contract, or specifically negotiated licenses).

 

                    ****Corporation, individual, or other person, as appropriate.

 

Date

_________________________________

Printed Name and Title

_________________________________

 

_________________________________

Signature

_________________________________

 

(End of identification and assertion)

 

              (4)  When requested by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate the Contractor's assertions.  The Contracting Officer reserves the right to add the Contractor's assertions to the Attachment and validate any listed assertion, at a later date, in accordance with the procedures of the Validation of Restrictive Markings on Technical Data clause of this contract.

 

      (f)  Marking requirements.  The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data to be delivered under this contract by marking the deliverable data subject to restriction.  Except as provided in paragraph (f)(5) of this clause, only the following legends are authorized under this contract: the government purpose rights legend at paragraph (f)(2) of this clause; the limited rights legend at paragraph (f)(3) of this clause; or the special license rights legend at paragraph (f)(4) of this clause; and/or a notice of copyright as prescribed under 17 U.S.C. 401 or 402.

 

              (1)  General marking instructions.  The Contractor, or its subcontractors or suppliers, shall conspicuously and legibly mark the appropriate legend on all technical data that qualify for such markings.  The authorized legends shall be placed on the transmittal document or storage container and, for printed material, each page of the printed material containing technical data for which restrictions are asserted.  When only portions of a page of printed material are subject to the asserted restrictions, such portions shall be identified by circling, underscoring, with a note, or other appropriate identifier.  Technical data transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions.  Reproductions of technical data or any portions thereof subject to asserted restrictions shall also reproduce the asserted restrictions.

 

              (2)  Government purpose rights markings.  Data delivered or otherwise furnished to the Government with government purpose rights shall be marked as follows:

 

GOVERNMENT PURPOSE RIGHTS

 

 

Contract No.

 

 

 

Contractor Name

 

 

 

Contractor Address

 

 

 

 

 

 

 

Expiration Date

 

 

 

              The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(2) of the Rights in Technical Data—Noncommercial Items clause contained in the above identified contract.  No restrictions apply after the expiration date shown above.  Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.

 

(End of legend)

 

              (3)  Limited rights markings.  Data delivered or otherwise furnished to the Government with limited rights shall be marked with the following legend:

 

LIMITED RIGHTS

 

 

Contract No.

 

 

 

Contractor Name

 

 

 

Contractor Address

 

 

 

 

 

 

 

              The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(3) of the Rights in Technical Data--Noncommercial Items clause contained in the above identified contract.  Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.  Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.

 

(End of legend)

 

              (4)  Special license rights markings.

 

                    (i)  Data in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:

 

SPECIAL LICENSE RIGHTS

 

The Government's rights to use, modify, reproduce, release, perform, display, or disclose these data are restricted by Contract No. _____(Insert contract number)____, License No. ____(Insert license identifier)____.  Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.

 

(End of legend)

 

                    (ii)  For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (b)(5) of this clause).

 

              (5)  Pre-existing data markings.  If the terms of a prior contract or license permitted the Contractor to restrict the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data deliverable under this contract, and those restrictions are still applicable, the Contractor may mark such data with the appropriate restrictive legend for which the data qualified under the prior contract or license.  The marking procedures in paragraph (f)(1) of this clause shall be followed.

 

      (g)  Contractor procedures and records.  Throughout performance of this contract, the Contractor and its subcontractors or suppliers that will deliver technical data with other than unlimited rights, shall—

 

              (1)  Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this clause; and

              (2)  Maintain records sufficient to justify the validity of any restrictive markings on technical data delivered under this contract.

 

      (h)  Removal of unjustified and nonconforming markings.

 

              (1)  Unjustified technical data markings.  The rights and obligations of the parties regarding the validation of restrictive markings on technical data furnished or to be furnished under this contract are contained in the Validation of Restrictive Markings on Technical Data clause of this contract.  Notwithstanding any provision of this contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the procedures in the Validation of Restrictive Markings on Technical Data clause of this contract, a restrictive marking is determined to be unjustified.

 

              (2)  Nonconforming technical data markings.  A nonconforming marking is a marking placed on technical data delivered or otherwise furnished to the Government under this contract that is not in the format authorized by this contract.  Correction of nonconforming markings is not subject to the Validation of Restrictive Markings on Technical Data clause of this contract.  If the Contracting Officer notifies the Contractor of a nonconforming marking and the Contractor fails to remove or correct such marking within sixty (60) days, the Government may ignore or, at the Contractor's expense, remove or correct any nonconforming marking.

 

      (i)  Relation to patents.  Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.

 

      (j)  Limitation on charges for rights in technical data.

 

              (1)  The Contractor shall not charge to this contract any cost, including, but not limited to, license fees, royalties, or similar charges, for rights in technical data to be delivered under this contract when—

 

                    (i)  The Government has acquired, by any means, the same or greater rights in the data; or

 

                    (ii)  The data are available to the public without restrictions.

 

              (2)  The limitation in paragraph (j)(1) of this clause—

 

                    (i)  Includes costs charged by a subcontractor or supplier, at any tier, or costs incurred by the Contractor to acquire rights in subcontractor or supplier technical data, if the subcontractor or supplier has been paid for such rights under any other Government contract or under a license conveying the rights to the Government; and

 

                    (ii)  Does not include the reasonable costs of reproducing, handling, or mailing the documents or other media in which the technical data will be delivered.

 

      (k)  Applicability to subcontractors or suppliers.

 

              (1)  The Contractor shall ensure that the rights afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion, and delivery processes of paragraph (e) of this clause are recognized and protected.

 

              (2)  Whenever any technical data for noncommercial items is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties.  No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher-tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data.

 

              (3)  Technical data required to be delivered by a subcontractor or supplier shall normally be delivered to the next higher-tier contractor, subcontractor, or supplier.  However, when there is a requirement in the prime contract for data which may be submitted with other than unlimited rights by a subcontractor or supplier, then said subcontractor or supplier may fulfill its requirement by submitting such data directly to the Government, rather than through a higher-tier contractor, subcontractor, or supplier.

 

              (4)  The Contractor and higher-tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in technical data from their subcontractors or suppliers.

 

              (5)  In no event shall the Contractor use its obligation to recognize and protect subcontractor or supplier rights in technical data as an excuse for failing to satisfy its contractual obligation to the Government.

 

(End of clause)

 

ALTERNATE I (JUN 1995)

As prescribed in 227.7103-6(b), add the following paragraph (l) to the basic clause:

 

      (l)  Publication for sale.

 

              (1)  This paragraph only applies to technical data in which the Government has obtained unlimited rights or a license to make an unrestricted release of technical data.

 

              (2)  The Government shall not publish a deliverable technical data item or items identified in this contract as being subject to paragraph (l) of this clause or authorize others to publish such data on its behalf if, prior to publication for sale by the Government and within twenty-four (24) months following the date specified in this contract for delivery of such data or the removal of any national security or export control restrictions, whichever is later, the Contractor publishes that item or items for sale and promptly notifies the Contracting Officer of such publication(s).  Any such publication shall include a notice identifying the number of this contract and the Government's rights in the published data.

 

              (3)  This limitation on the Government's right to publish for sale shall continue as long as the data are reasonably available to the public for purchase.


252.227-7014  Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation.

As prescribed in 227.7203-6(a)(1), use the following clause:

 

RIGHTS IN NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL COMPUTER SOFTWARE DOCUMENTATION (JUN 1995)

 

      (a)  Definitions.  As used in this clause:

 

              (1)  “Commercial computer software” means software developed or regularly used for non-governmental purposes which—

 

                    (i)  Has been sold, leased, or licensed to the public;

 

                    (ii)  Has been offered for sale, lease, or license to the public;

 

                    (iii)  Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or

 

                    (iv)  Satisfies a criterion expressed in paragraph (a)(1)(i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this contract.

 

              (2)  “Computer database” means a collection of recorded data in a form capable of being processed by a computer.  The term does not include computer software.

 

              (3)  “Computer program” means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

 

              (4)  “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled.  Computer software does not include computer databases or computer software documentation.

 

              (5)  “Computer software documentation” means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

 

              (6)  “Developed” means that—

 

                    (i)  A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;

 

                    (ii)  Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or

 

                    (iii)  Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.

 

              (7)  “Developed exclusively at private expense” means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract, or any combination thereof.

 

                    (i)  Private expense determinations should be made at the lowest practicable level.

 

                    (ii)  Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

 

              (8)  “Developed exclusively with government funds” means development was not accomplished exclusively or partially at private expense.

 

              (9)  “Developed with mixed funding” means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

 

              (10)  “Government purpose” means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations.  Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation for commercial purposes or authorize others to do so.

 

              (11)  “Government purpose rights” means the rights to—

 

                    (i)  Use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation within the Government without restriction; and

 

                    (ii)  Release or disclose computer software or computer software documentation outside the Government and authorize persons to whom release or disclosure has been made to use, modify, reproduce, release, perform, display, or disclose the software or documentation for United States government purposes.

 

              (12)  “Minor modification” means a modification that does not significantly alter the nongovernmental function or purpose of the software or is of the type customarily provided in the commercial marketplace.

 

              (13)  “Noncommercial computer software” means software that does not qualify as commercial computer software under paragraph (a)(1) of this clause.

 

              (14)  “Restricted rights” apply only to noncommercial computer software and mean the Government's rights to—


                    (i)  Use a computer program with one computer at one time.  The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;

 

                    (ii)  Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer.  Transferred programs remain subject to the provisions of this clause;

 

                    (iii)  Make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes;

 

                    (iv)  Modify computer software provided that the Government may—

 

                            (A)  Use the modified software only as provided in paragraphs (a)(14)(i) and (iii) of this clause; and

 

                            (B)  Not release or disclose the modified software except as provided in paragraphs (a)(14)(ii), (v) and (vi) of this clause;

 

                    (v)  Permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that—

 

                            (A)  The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made;

 

                            (B)  Such contractors or subcontractors are subject to the use and non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS) or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;

 

                            (C)  The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(14)(iv) of this clause, for any other purpose; and

 

                            (D)  Such use is subject to the limitation in paragraph (a)(14)(i) of this clause; and

 

                    (vi)  Permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use the computer software when necessary to perform the repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that—

 

                            (A)  The intended recipient is subject to the use and non-disclosure agreement at DFARS 227.7103-7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends; and

 

                            (B)  The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(14)(iv) of this clause, for any other purpose.

 

              (15)  “Unlimited rights” means rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.

 

      (b)  Rights in computer software or computer software documentation.  The Contractor grants or shall obtain for the Government the following royalty free, world-wide, nonexclusive, irrevocable license rights in noncommercial computer software or computer software documentation.  All rights not granted to the Government are retained by the Contractor.

 

              (1)  Unlimited rights.  The Government shall have unlimited rights in—

 

                    (i)  Computer software developed exclusively with Government funds;

 

                    (ii)  Computer software documentation required to be delivered under this contract;

 

                    (iii)  Corrections or changes to computer software or computer software documentation furnished to the Contractor by the Government;

 

                    (iv)  Computer software or computer software documentation that is otherwise publicly available or has been released or disclosed by the Contractor or subcontractor without restriction on further use, release or disclosure, other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the software to another party or the sale or transfer of some or all of a business entity or its assets to another party;

 

                    (v)  Computer software or computer software documentation obtained with unlimited rights under another Government contract or as a result of negotiations; or

 

                    (vi)  Computer software or computer software documentation furnished to the Government, under this or any other Government contract or subcontract thereunder with—

 

                            (A)  Restricted rights in computer software, limited rights in technical data, or government purpose license rights and the restrictive conditions have expired; or

 

                            (B)  Government purpose rights and the Contractor's exclusive right to use such software or documentation for commercial purposes has expired.


              (2)  Government purpose rights.

 

                    (i)  Except as provided in paragraph (b)(1) of this clause, the Government shall have government purpose rights in computer software developed with mixed funding.

 

                    (ii)  Government purpose rights shall remain in effect for a period of five years unless a different period has been negotiated.  Upon expiration of the five-year or other negotiated period, the Government shall have unlimited rights in the computer software or computer software documentation.  The government purpose rights period shall commence upon execution of the contract, subcontract, letter contract (or similar contractual instrument), contract modification, or option exercise that required development of the computer software.

 

                    (iii)  The Government shall not release or disclose computer software in which it has government purpose rights to any other person unless—

 

                            (A)  Prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at DFARS 227.7103-7; or

 

                            (B)  The recipient is a Government contractor receiving access to the software or documentation for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends.

 

              (3)  Restricted rights.

 

                    (i)  The Government shall have restricted rights in noncommercial computer software required to be delivered or otherwise provided to the Government under this contract that were developed exclusively at private expense.

 

                    (ii)  The Contractor, its subcontractors, or suppliers are not required to provide the Government additional rights in noncommercial computer software delivered or otherwise provided to the Government with restricted rights.  However, if the Government desires to obtain additional rights in such software, the Contractor agrees to promptly enter into negotiations with the Contracting Officer to determine whether there are acceptable terms for transferring such rights.  All noncommercial computer software in which the Contractor has granted the Government additional rights shall be listed or described in a license agreement made part of the contract (see paragraph (b)(4) of this clause).  The license shall enumerate the additional rights granted the Government.

 

              (4)  Specifically negotiated license rights.

 

                    (i)  The standard license rights granted to the Government under paragraphs (b)(1) through (b)(3) of this clause, including the period during which the Government shall have government purpose rights in computer software, may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in computer software than are enumerated in paragraph (a)(14) of this clause or lesser rights in computer software documentation than are enumerated in paragraph (a)(13) of the Rights in Technical Data--Noncommercial Items clause of this contract.


                    (ii)  Any rights so negotiated shall be identified in a license agreement made part of this contract.

 

              (5)  Prior government rights.  Computer software or computer software documentation that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the pre-existing rights, unless—

 

                    (i)  The parties have agreed otherwise; or

 

                    (ii)  Any restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose the data have expired or no longer apply.

 

              (6)  Release from liability.  The Contractor agrees to release the Government from liability for any release or disclosure of computer software made in accordance with paragraph (a)(14) or (b)(2)(iii) of this clause, in accordance with the terms of a license negotiated under paragraph (b)(4) of this clause, or by others to whom the recipient has released or disclosed the software, and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor software marked with restrictive legends.

 

      (c)  Rights in derivative computer software or computer software documentation.  The Government shall retain its rights in the unchanged portions of any computer software or computer software documentation delivered under this contract that the Contractor uses to prepare, or includes in, derivative computer software or computer software documentation.

 

      (d)  Third party copyrighted computer software or computer software documentation.  The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted computer software or computer software documentation in the software or documentation to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable software or documentation of the appropriate scope set forth in paragraph (b) of this clause, and prior to delivery of such—

 

              (1)  Computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer; or

 

              (2)  Computer software documentation, has affixed to the transmittal document a statement of the license rights obtained.

 

      (e)  Identification and delivery of computer software and computer software documentation to be furnished with restrictions on use, release, or disclosure.

 

              (1)  This paragraph does not apply to restrictions based solely on copyright.

 

              (2)  Except as provided in paragraph (e)(3) of this clause, computer software that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure is identified in an attachment to this contract (the Attachment).  The Contractor shall not deliver any software with restrictive markings unless the software is listed on the Attachment.


              (3)  In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision.  Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled date for delivery of the software, in the following format, and signed by an official authorized to contractually obligate the Contractor:

 

Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Computer Software.

 

                    The Contractor asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following computer software should be restricted:

 

Computer Software

 

 

Name of Person

to be Furnished

Basis for

Asserted Rights

Asserting

With Restrictions*

Assertion**

Category***

Restrictions****

(LIST)

(LIST)

(LIST)

(LIST)

 

                    *Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose computer software.

 

                    **Indicate whether development was exclusively or partially at private expense.  If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.

 

                    ***Enter asserted rights category (e.g., restricted or government purpose rights in computer software, government purpose license rights from a prior contract, rights in SBIR software generated under another contract, or specifically negotiated licenses).

 

                    ****Corporation, individual, or other person, as appropriate.

 

Date

______________________________

Printed Name and Title

______________________________

 

______________________________

Signature

______________________________

 

(End of identification and assertion)

 

              (4)  When requested by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate the Contractor's assertions.  The Contracting Officer reserves the right to add the Contractor's assertions to the Attachment and validate any listed assertion, at a later date, in accordance with the procedures of the Validation of Asserted Restrictions—Computer Software clause of this contract.

 

      (f)  Marking requirements.  The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software by marking the deliverable software or documentation subject to restriction.  Except as provided in paragraph (f)(5) of this clause, only the following legends are authorized under this contract: the government purpose rights legend at paragraph (f)(2) of this clause; the restricted rights legend at paragraph (f)(3) of this clause; or the special license rights legend at paragraph (f)(4) of this clause; and/or a notice of copyright as prescribed under 17 U.S.C. 401 or 402.

 

              (1)  General marking instructions.  The Contractor, or its subcontractors or suppliers, shall conspicuously and legibly mark the appropriate legend on all computer software that qualify for such markings.  The authorized legends shall be placed on the transmittal document or software storage container and each page, or portions thereof, of printed material containing computer software for which restrictions are asserted.  Computer software transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions.  However, instructions that interfere with or delay the operation of computer software in order to display a restrictive rights legend or other license statement at any time prior to or during use of the computer software, or otherwise cause such interference or delay, shall not be inserted in software that will or might be used in combat or situations that simulate combat conditions, unless the Contracting Officer's written permission to deliver such software has been obtained prior to delivery.  Reproductions of computer software or any portions thereof subject to asserted restrictions, shall also reproduce the asserted restrictions.

 

              (2)  Government purpose rights markings.  Computer software delivered or otherwise furnished to the Government with government purpose rights shall be marked as follows:

 

GOVERNMENT PURPOSE RIGHTS

 

 

Contract No.

 

 

 

Contractor Name

 

 

 

Contractor Address

 

 

 

 

 

 

 

Expiration Date

 

 

 

                    The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(2) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause contained in the above identified contract.  No restrictions apply after the expiration date shown above.  Any reproduction of the software or portions thereof marked with this legend must also reproduce the markings.

 

(End of legend)

 

              (3)  Restricted rights markings.  Software delivered or otherwise furnished to the Government with restricted rights shall be marked with the following legend:

 

RESTRICTED RIGHTS

 

 

Contract No.

 

 

 

Contractor Name

 

 

 

Contractor Address

 

 

 

 

 

 

 

                    The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(3) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause contained in the above identified contract.  Any reproduction of computer software or portions thereof marked with this legend must also reproduce the markings.  Any person, other than the Government, who has been provided access to such software must promptly notify the above named Contractor.

 

(End of legend)

 

              (4)  Special license rights markings.

 

                    (i)  Computer software or computer software documentation in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:

 

SPECIAL LICENSE RIGHTS

 

The Government's rights to use, modify, reproduce, release, perform, display, or disclose these data are restricted by Contract No. _____(Insert contract number)____, License No. ____(Insert license identifier)____.  Any reproduction of computer software, computer software documentation, or portions thereof marked with this legend must also reproduce the markings.

 

(End of legend)

 

                    (ii)  For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (b)(5) of this clause).

 

              (5)  Pre-existing markings.  If the terms of a prior contract or license permitted the Contractor to restrict the Government's rights to use, modify, release, perform, display, or disclose computer software or computer software documentation and those restrictions are still applicable, the Contractor may mark such software or documentation with the appropriate restrictive legend for which the software qualified under the prior contract or license.  The marking procedures in paragraph (f)(1) of this clause shall be followed.

 

      (g)  Contractor procedures and records.  Throughout performance of this contract, the Contractor and its subcontractors or suppliers that will deliver computer software or computer software documentation with other than unlimited rights, shall—

              (1)  Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this clause; and

 

              (2)  Maintain records sufficient to justify the validity of any restrictive markings on computer software or computer software documentation delivered under this contract.

 

      (h)  Removal of unjustified and nonconforming markings.

 

              (1)  Unjustified computer software or computer software documentation markings.  The rights and obligations of the parties regarding the validation of restrictive markings on computer software or computer software documentation furnished or to be furnished under this contract are contained in the Validation of Asserted Restrictions--Computer Software and the Validation of Restrictive Markings on Technical Data clauses of this contract, respectively.  Notwithstanding any provision of this contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the procedures of those clauses, a restrictive marking is determined to be unjustified.

 

              (2)  Nonconforming computer software or computer software documentation markings.  A nonconforming marking is a marking placed on computer software or computer software documentation delivered or otherwise furnished to the Government under this contract that is not in the format authorized by this contract.  Correction of nonconforming markings is not subject to the Validation of Asserted Restrictions--Computer Software or the Validation of Restrictive Markings on Technical Data clause of this contract.  If the Contracting Officer notifies the Contractor of a nonconforming marking or markings and the Contractor fails to remove or correct such markings within sixty (60) days, the Government may ignore or, at the Contractor's expense, remove or correct any nonconforming markings.

 

      (i)  Relation to patents.  Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.

 

      (j)  Limitation on charges for rights in computer software or computer software documentation.

 

              (1)  The Contractor shall not charge to this contract any cost, including but not limited to license fees, royalties, or similar charges, for rights in computer software or computer software documentation to be delivered under this contract when—

 

                    (i)  The Government has acquired, by any means, the same or greater rights in the software or documentation; or

 

                    (ii)  The software or documentation are available to the public without restrictions.

 

              (2)  The limitation in paragraph (j)(1) of this clause—

 

                    (i)  Includes costs charged by a subcontractor or supplier, at any tier, or costs incurred by the Contractor to acquire rights in subcontractor or supplier computer software or computer software documentation, if the subcontractor or supplier has been paid for such rights under any other Government contract or under a license conveying the rights to the Government; and

 

                    (ii)  Does not include the reasonable costs of reproducing, handling, or mailing the documents or other media in which the software or documentation will be delivered.

 

      (k)  Applicability to subcontractors or suppliers.

 

              (1)  Whenever any noncommercial computer software or computer software documentation is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in its subcontracts or other contractual instruments, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties.  No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher tier subcontractor's or supplier's rights in a subcontractor's or supplier's computer software or computer software documentation.

 

              (2)  The Contractor and higher tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in computer software or computer software documentation from their subcontractors or suppliers.

 

              (3)  The Contractor shall ensure that subcontractor or supplier rights are recognized and protected in the identification, assertion, and delivery processes required by paragraph (e) of this clause.

 

              (4)  In no event shall the Contractor use its obligation to recognize and protect subcontractor or supplier rights in computer software or computer software documentation as an excuse for failing to satisfy its contractual obligation to the Government.

 

(End of clause)

 

ALTERNATE I (JUN 1995)

As prescribed in 227.7203-6(a)(2), add the following paragraph (l) to the basic clause:

 

      (l)  Publication for sale.

 

              (1)  This paragraph only applies to computer software or computer software documentation in which the Government has obtained unlimited rights or a license to make an unrestricted release of the software or documentation.

 

              (2)  The Government shall not publish a deliverable item or items of computer software or computer software documentation identified in this contract as being subject to paragraph (l) of this clause or authorize others to publish such software or documentation on its behalf if, prior to publication for sale by the Government and within twenty-four (24) months following the date specified in this contract for delivery of such software or documentation, or the removal of any national security or export control restrictions, whichever is later, the Contractor publishes that item or items for sale and promptly notifies the Contracting Officer of such publication(s).  Any such publication shall include a notice identifying the number of this contract and the Government's rights in the published software or documentation.


              (3)  This limitation on the Government's right to publish for sale shall continue as long as the software or documentation are reasonably available to the public for purchase.

 

252.227-7015  Technical Data--Commercial Items.

As prescribed in 227.7102-3, use the following clause:

 

TECHNICAL DATA--COMMERCIAL ITEMS (NOV 1995)

 

      (a)  Definitions.  As used in this clause:

 

              (1)  “Commercial item” does not include commercial computer software.

 

              (2)  “Form, fit, and function data” means technical data that describes the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

 

              (3)  The term “item” includes components or processes.

 

              (4)  “Technical data” means recorded information, regardless of the form or method of recording, of a scientific or technical nature (including computer software documentation).  The term does not include computer software or data incidental to contract administration, such as financial and/or management information.

 

      (b)  License.

 

              (1)  The Government shall have the unrestricted right to use, modify, reproduce, release, perform, display, or disclose technical data, and to permit others to do so, that—

 

                    (i)  Have been provided to the Government or others without restrictions on use, modification, reproduction, release, or further disclosure other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data to another party or the sale or transfer of some or all of a business entity or its assets to another party;

 

                    (ii)  Are form, fit, and function data;

 

                    (iii)  Are a correction or change to technical data furnished to the Contractor by the Government;

 

                    (iv)  Are necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data); or

 

                    (v)  Have been provided to the Government under a prior contract or licensing agreement through which the Government has acquired the rights to use, modify, reproduce, release, perform, display, or disclose the data without restrictions.

 

              (2)  Except as provided in paragraph (b)(1) of this clause, the Government may use, modify, reproduce, release, perform, display, or disclose technical data within the Government only.  The Government shall not—


                    (i)  Use the technical data to manufacture additional quantities of the commercial items; or

 

                    (ii)  Release, perform, display, disclose, or authorize use of the technical data outside the Government without the Contractor's written permission unless a release, disclosure or permitted use is necessary for emergency repair or overhaul of the commercial items furnished under this contract.

 

      (c)  Additional license rights.  The Contractor, its subcontractors, and suppliers are not required to provide the Government additional rights to use, modify, reproduce, release, perform, display, or disclose technical data.  However, if the Government desires to obtain additional rights in technical data, the Contractor agrees to promptly enter into negotiations with the Contracting Officer to determine whether there are acceptable terms for transferring such rights.  All technical data in which the Contractor has granted the Government additional rights shall be listed or described in a special license agreement made part of this contract.  The license shall enumerate the additional rights granted the Government in such data.

 

      (d)  Release from liability.  The Contractor agrees that the Government, and other persons to whom the Government may have released or disclosed technical data delivered or otherwise furnished under this contract, shall have no liability for any release or disclosure of technical data that are not marked to indicate that such data are licensed data subject to use, modification, reproduction, release, performance, display, or disclosure restrictions.

 

(End of clause)

 

252.227-7016  Rights in Bid or Proposal Information.

As prescribed in 227.7103-6(e)(1), 227.7104(e)(1), or 227.7203-6(b), use the following clause:

 

RIGHTS IN BID OR PROPOSAL INFORMATION (JUN 1995)

 

      (a)  Definitions.

 

              (1)  For contracts that require the delivery of technical data, the terms “technical data” and “computer software” are defined in the Rights in Technical Data--Noncommercial Item clause of this contract or, if this is a contract awarded under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause of this contract.

 

              (2)  For contracts that do not require the delivery of technical data, the term “computer software” is defined in the Rights in Noncommercial Computer and Noncommercial Computer Software Documentation clause of this contract or, if this is a contract awarded under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause of this contract.

 

      (b  Government rights prior to contract award.  By submission of its offer, the Offeror agrees that the Government—

 

              (1)  May reproduce the bid or proposal, or any portions thereof, to the extent necessary to evaluate the offer.

 

              (2)  Except as provided in paragraph (d) of this clause, shall use information contained in the bid or proposal only for evaluational purposes and shall not disclose, directly or indirectly, such information to any person including potential evaluators, unless that person has been authorized by the head of the agency, his or her designee, or the Contracting Officer to receive such information.

 

      (c)  Government rights subsequent to contract award.  The Contractor agrees—

 

              (1)  Except as provided in paragraphs (c)(2), (d), and (e) of this clause, the Government shall have the rights to use, modify, reproduce, release, perform, display, or disclose information contained in the Contractor's bid or proposal within the Government.  The Government shall not release, perform, display, or disclose such information outside the Government without the Contractor's written permission.

 

              (2)  The Government’s right to use, modify, reproduce, release, perform, display, or disclose information that is technical data or computer software required to be delivered under this contract are determined by the Rights in Technical Data--Noncommercial Items, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation, or Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause(s) of this contract.

 

      (d)  Government-furnished information.  The Government's rights with respect to technical data or computer software contained in the Contractor's bid or proposal that were provided to the Contractor by the Government are subject only to restrictions on use, modification, reproduction, release, performance, display, or disclosure, if any, imposed by the developer or licensor of such data or software.

 

      (e)  Information available without restrictions.  The Government's rights to use, modify, reproduce, release, perform, display, or, disclose information contained in a bid or proposal, including technical data or computer software, and to permit others to do so, shall not be restricted in any manner if such information has been released or disclosed to the Government or to other persons without restrictions other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the information to another party or the sale or transfer of some or all of a business entity or its assets to another party.

 

      (f)  Flowdown.  The Contractor shall include this clause in all subcontracts or similar contractual instruments and require its subcontractors or suppliers to do so without alteration, except to identify the parties.

 

(End of clause)

 

252.227-7017  Identification and Assertion of Use, Release, or Disclosure Restrictions.

As prescribed in 227.7103-3(b), 227.7104(e)(2), or 227.7203-3(a), use the following provision:

 

IDENTIFICATION AND ASSERTION OF USE, RELEASE, OR DISCLOSURE RESTRICTIONS (JUN 1995)

 

      (a)  The terms used in this provision are defined in following clause or clauses contained in this solicitation—

 

              (1)  If a successful offeror will be required to deliver technical data, the Rights in Technical Data--Noncommercial Items clause, or, if this solicitation contemplates a contract under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause.

 

              (2)  If a successful offeror will not be required to deliver technical data, the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause, or, if this solicitation contemplates a contract under the Small Business Innovative Research Program, the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause.

 

      (b)  The identification and assertion requirements in this provision apply only to technical data, including computer software documentation, or computer software to be delivered with other than unlimited rights.  For contracts to be awarded under the Small Business Innovative Research Program, the notification and identification requirements do not apply to technical data or computer software that will be generated under the resulting contract.  Notification and identification is not required for restrictions based solely on copyright.

 

      (c)  Offers submitted in response to this solicitation shall identify, to the extent known at the time an offer is submitted to the Government, the technical data or computer software that the Offeror, its subcontractors or suppliers, or potential subcontractors or suppliers, assert should be furnished to the Government with restrictions on use, release, or disclosure.

 

      (d)  The Offeror's assertions, including the assertions of its subcontractors or suppliers or potential subcontractors or suppliers, shall be submitted as an attachment to its offer in the following format, dated and signed by an official authorized to contractually obligate the Offeror:

 

Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Technical Data or Computer Software.

 

              The Offeror asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data or computer software should be restricted:

 

Technical Data or

 

 

 

Computer Software

 

 

Name of Person

to be Furnished

Basis for

Asserted Rights

Asserting

With Restrictions*

Assertion**

Category***

Restrictions****

(LIST)*****

(LIST)

(LIST)

(LIST)

 

              *For technical data (other than computer software documentation) pertaining to items, components, or processes developed at private expense, identify both the deliverable technical data and each such item, component, or process.  For computer software or computer software documentation identify the software or documentation.

 

              **Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions.  For technical data, other than computer software documentation, development refers to development of the item, component, or process to which the data pertain.  The Government's rights in computer software documentation generally may not be restricted.  For computer software, development refers to the software.  Indicate whether development was accomplished exclusively or partially at private expense.  If development was not accomplished at private expense, or for computer software documentation, enter the specific basis for asserting restrictions.

 

              ***Enter asserted rights category (e.g., government purpose license rights from a prior contract, rights in SBIR data generated under another contract, limited, restricted, or government purpose rights under this or a prior contract, or specially negotiated licenses).

 

              ****Corporation, individual, or other person, as appropriate.

 

              *****Enter “none” when all data or software will be submitted without restrictions.

 

Date

_________________________________

Printed Name and Title

_________________________________

 

_________________________________

Signature

_________________________________

 

(End of identification and assertion)

 

      (e)  An offeror's failure to submit, complete, or sign the notification and identification required by paragraph (d) of this provision with its offer may render the offer ineligible for award.

 

      (f)  If the Offeror is awarded a contract, the assertions identified in paragraph (d) of this provision shall be listed in an attachment to that contract.  Upon request by the Contracting Officer, the Offeror shall provide sufficient information to enable the Contracting Officer to evaluate any listed assertion.

 

(End of provision)

 

252.227-7018  Rights in Noncommercial Technical Data and Computer Software--Small Business Innovation Research (SBIR) Program.

As prescribed in 227.7104(a), use the following clause:

 

RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND COMPUTER SOFTWARE--SMALL BUSINESS INNOVATION RESEARCH (SBIR) PROGRAM (JUN 1995)

 

      (a)  Definitions.  As used in this clause:


              (1)  “Commercial computer software” means software developed or regularly used for nongovernmental purposes which—

 

                    (i)  Has been sold, leased, or licensed to the public;

 

                    (ii)  Has been offered for sale, lease, or license to the public;

 

                    (iii)  Has not been offered, sold, leased, or licensed to the public but will be available for commercial sale, lease, or license in time to satisfy the delivery requirements of this contract; or

 

                    (iv)  Satisfies a criterion expressed in paragraph (a)(1)(i), (ii), or (iii) of this clause and would require only minor modification to meet the requirements of this contract.

 

              (2)  “Computer database” means a collection of recorded data in a form capable of being processed by a computer.  The term does not include computer software.

 

              (3)  “Computer program” means a set of instructions, rules, or routines, recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

 

              (4)  “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled.  Computer software does not include computer databases or computer software documentation.

 

              (5)  “Computer software documentation” means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

 

              (6)  “Detailed manufacturing or process data” means technical data that describe the steps, sequences, and conditions of manufacturing, processing or assembly used by the manufacturer to produce an item or component or to perform a process.

 

              (7)  “Developed” means—

 

                    (i)  (Applicable to technical data other than computer software documentation.)  An item, component, or process, exists and is workable.  Thus, the item or component must have been constructed or the process practiced.  Workability is generally established when the item, component, or process has been analyzed or tested sufficiently to demonstrate to reasonable people skilled in the applicable art that there is a high probability that it will operate as intended.  Whether, how much, and what type of analysis or testing is required to establish workability depends on the nature of the item, component, or process, and the state of the art.  To be considered “developed,” the item, component, or process need not be at the stage where it could be offered for sale or sold on the commercial market, nor must the item, component or process be actually reduced to practice within the meaning of Title 35 of the United States Code;

 

                    (ii)  A computer program has been successfully operated in a computer and tested to the extent sufficient to demonstrate to reasonable persons skilled in the art that the program can reasonably be expected to perform its intended purpose;

 

                    (iii)  Computer software, other than computer programs, has been tested or analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art that the software can reasonably be expected to perform its intended purpose; or

 

                    (iv)  Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.

 

              (8)  “Developed exclusively at private expense” means development was accomplished entirely with costs charged to indirect cost pools, costs not allocated to a government contract, or any combination thereof.

 

                    (i)  Private expense determinations should be made at the lowest practicable level.

 

                    (ii)  Under fixed-price contracts, when total costs are greater than the firm-fixed-price or ceiling price of the contract, the additional development costs necessary to complete development shall not be considered when determining whether development was at government, private, or mixed expense.

 

              (9)  “Developed exclusively with government funds” means development was not accomplished exclusively or partially at private expense.

 

              (10)  “Developed with mixed funding” means development was accomplished partially with costs charged to indirect cost pools and/or costs not allocated to a government contract, and partially with costs charged directly to a government contract.

 

              (11)  “Form, fit, and function data” means technical data that describe the required overall physical, functional, and performance characteristics (along with the qualification requirements, if applicable) of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.

 

              (12)  “Generated” means technical data or computer software first created in the performance of this contract.

 

              (13)  “Government purpose” means any activity in which the United States Government is a party, including cooperative agreements with international or multi-national defense organizations or sales or transfers by the United States Government to foreign governments or international organizations.  Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software for commercial purposes or authorize others to do so.

 

              (14)  “Limited rights” means the rights to use, modify, reproduce, release, perform, display, or disclose technical data, in whole or in part, within the Government.  The Government may not, without the written permission of the party asserting limited rights, release or disclose the technical data outside the Government, use the technical data for manufacture, or permit the technical data to be used by another party, except that the Government may reproduce, release or disclose such data or permit the use or reproduction of the data by persons outside the Government if reproduction, release, disclosure, or use is—

 

                    (i)  Necessary for emergency repair and overhaul; or

 

                    (ii)  A release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the Government and is required for evaluational or informational purposes;

 

                    (iii)  Subject to a prohibition on the further reproduction, release, disclosure, or use of the technical data; and

 

                    (iv)  The Contractor or subcontractor asserting the restriction is notified of such reproduction, release, disclosure, or use.

 

              (15)  “Minor modification” means a modification that does not significantly alter the nongovernmental function or purpose of computer software or is of the type customarily provided in the commercial marketplace.

 

              (16)  “Noncommercial computer software” means software that does not qualify as commercial computer software under paragraph (a)(1) of this clause.

 

              (17)  “Restricted rights” apply only to noncommercial computer software and mean the Government's rights to—

 

                    (i)  Use a computer program with one computer at one time.  The program may not be accessed by more than one terminal or central processing unit or time shared unless otherwise permitted by this contract;

 

                    (ii)  Transfer a computer program to another Government agency without the further permission of the Contractor if the transferor destroys all copies of the program and related computer software documentation in its possession and notifies the licensor of the transfer.  Transferred programs remain subject to the provisions of this clause;

 

                    (iii)  Make the minimum number of copies of the computer software required for safekeeping (archive), backup, or modification purposes;

 

                    (iv)  Modify computer software provided that the Government may—

 

                            (A)  Use the modified software only as provided in paragraphs (a)(17)(i) and (iii) of this clause; and

 

                            (B)  Not release or disclose the modified software except as provided in paragraphs (a)(17)(ii), (v) and (vi) of this clause;

 

                    (v)  Permit contractors or subcontractors performing service contracts (see 37.101 of the Federal Acquisition Regulation) in support of this or a related contract to use computer software to diagnose and correct deficiencies in a computer program, to modify computer software to enable a computer program to be combined with, adapted to, or merged with other computer programs or when necessary to respond to urgent tactical situations, provided that—

 

                            (A)  The Government notifies the party which has granted restricted rights that a release or disclosure to particular contractors or subcontractors was made;

 

                            (B)  Such contractors or subcontractors are subject to the non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS) or are Government contractors receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends;

 

                            (C)  The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(17)(iv) of this clause, for any other purpose; and

 

                            (D)  Such use is subject to the limitation in paragraph (a)(17)(i) of this clause; and

 

                    (vi)  Permit contractors or subcontractors performing emergency repairs or overhaul of items or components of items procured under this or a related contract to use the computer software when necessary to perform the repairs or overhaul, or to modify the computer software to reflect the repairs or overhaul made, provided that—

 

                            (A)  The intended recipient is subject to the non-disclosure agreement at DFARS 227.7103-7 or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government Furnished Information Marked with Restrictive Legends; and

 

                            (B)  The Government shall not permit the recipient to decompile, disassemble, or reverse engineer the software, or use software decompiled, disassembled, or reverse engineered by the Government pursuant to paragraph (a)(17)(iv) of this clause, for any other purpose.

 

              (18)  “SBIR data rights” mean a royalty-free license for the Government, including its support service contractors, to use, modify, reproduce, release, perform, display, or disclose technical data or computer software generated and delivered under this contract for any United States government purpose.

 

              (19)  “Technical data” means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation).  The term does not include computer software or data incidental to contract administration, such as financial and/or management information.

 

              (20)  “Unlimited rights” means rights to use, modify, reproduce, release, perform, display, or disclose, technical data or computer software in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.

 

      (b)  Rights in technical data and computer software.  The Contractor grants or shall obtain for the Government the following royalty-free, world-wide, nonexclusive, irrevocable license rights in technical data or noncommercial computer software.  All rights not granted to the Government are retained by the Contractor.

 

              (1)  Unlimited rights.  The Government shall have unlimited rights in technical data, including computer software documentation, or computer software generated under this contract that are—

 

                    (i)  Form, fit, and function data;

 

                    (ii)  Necessary for installation, operation, maintenance, or training purposes (other than detailed manufacturing or process data);

 

                    (iii)  Corrections or changes to Government-furnished technical data or computer software;

 

                    (iv)  Otherwise publicly available or have been released or disclosed by the Contractor or a subcontractor without restrictions on further use, release or disclosure other than a release or disclosure resulting from the sale, transfer, or other assignment of interest in the technical data or computer software to another party or the sale or transfer of some or all of a business entity or its assets to another party;

 

                    (v)  Data or software in which the Government has acquired previously unlimited rights under another Government contract or through a specific license; and

 

                    (vi)  SBIR data upon expiration of the SBIR data rights period.

 

              (2)  Limited rights.  The Government shall have limited rights in technical data, that were not generated under this contract, pertain to items, components or processes developed exclusively at private expense, and are marked, in accordance with the marking instructions in paragraph (f)(1) of this clause, with the legend prescribed in paragraph (f)(2) of this clause.

 

              (3)  Restricted rights in computer software.  The Government shall have restricted rights in noncommercial computer software required to be delivered or otherwise furnished to the Government under this contract that were developed exclusively at private expense and were not generated under this contract.

 

              (4)  SBIR data rights.

 

                    (i)  Except for technical data, including computer software documentation, or computer software in which the Government has unlimited rights under paragraph (b)(1) of this clause, the Government shall have SBIR data rights in all technical data or computer software generated under this contract during the period commencing with contract award and ending upon the date five years after completion of the project from which such data were generated.

 

                    (ii)  The Government may not release or disclose SBIR data to any person, other than its support services contractors, except—

 

                            (A)  As expressly permitted by the Contractor;

 

                            (B)  For evaluational purposes; or

 

                            (C)  A release, disclosure, or use that is necessary for emergency repair or overhaul of items operated by the Government.

 

                    (iii)  A release or disclosure of SBIR data to the Government's support services contractors, or a release or disclosure under paragraph (b)(4)(ii)(B) or (C) of this clause, may be made only if, prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at DFARS 227.7103-7 or is a Government contractor receiving access to the technical data or software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

 

              (5)  Specifically negotiated license rights.  The standard license rights granted to the Government under paragraphs (b)(1) through (b)(4) of this clause may be modified by mutual agreement to provide such rights as the parties consider appropriate but shall not provide the Government lesser rights in technical data, including computer software documentation, than are enumerated in paragraph (a)(14) of this clause or lesser rights in computer software than are enumerated in paragraph (a)(17) of this clause.  Any rights so negotiated shall be identified in a license agreement made part of this contract.

 

              (6)  Prior government rights.  Technical data, including computer software documentation, or computer software that will be delivered, furnished, or otherwise provided to the Government under this contract, in which the Government has previously obtained rights shall be delivered, furnished, or provided with the pre-existing rights, unless—

 

                    (i)  The parties have agreed otherwise; or

 

                    (ii)  Any restrictions on the Government's rights to use, modify, release, perform, display, or disclose the technical data or computer software have expired or no longer apply.

 

              (7)  Release from liability.  The Contractor agrees to release the Government from liability for any release or disclosure of technical data, computer software, or computer software documentation made in accordance with paragraph (a)(14), (a)(17), or (b)(4) of this clause, or in accordance with the terms of a license negotiated under paragraph (b)(5) of this clause, or by others to whom the recipient has released or disclosed the data, software, or documentation and to seek relief solely from the party who has improperly used, modified, reproduced, released, performed, displayed, or disclosed Contractor data or software marked with restrictive legends.

 

      (c)  Rights in derivative computer software or computer software documentation.   The Government shall retain its rights in the unchanged portions of any computer software or computer software documentation delivered under this contract that the Contractor uses to prepare, or includes in, derivative software or documentation.

 

      (d)  Third party copyrighted technical data and computer software.  The Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted technical data, including computer software documentation, or computer software in the data or software to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data or software of the appropriate scope set forth in paragraph (b) of this clause and, prior to delivery of such—

 

              (1)  Technical data, has affixed to the transmittal document a statement of the license rights obtained; or

 

              (2)  Computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer.

 

      (e)  Identification and delivery of technical data or computer software to be furnished with restrictions on use, release, or disclosure.

 

              (1)  This paragraph does not apply to technical data or computer software that were or will be generated under this contract or to restrictions based solely on copyright.

 

              (2)  Except as provided in paragraph (e)(3) of this clause, technical data or computer software that the Contractor asserts should be furnished to the Government with restrictions on use, release, or disclosure is identified in an attachment to this contract (the Attachment).  The Contractor shall not deliver any technical data or computer software with restrictive markings unless the technical data or computer software are listed on the Attachment.

 

              (3)  In addition to the assertions made in the Attachment, other assertions may be identified after award when based on new information or inadvertent omissions unless the inadvertent omissions would have materially affected the source selection decision.  Such identification and assertion shall be submitted to the Contracting Officer as soon as practicable prior to the scheduled date for delivery of the technical data or computer software, in the following format, and signed by an official authorized to contractually obligate the Contractor:

 

                    Identification and Assertion of Restrictions on the Government's Use, Release, or Disclosure of Technical Data or Computer Software.

 

                    The Contractor asserts for itself, or the persons identified below, that the Government's rights to use, release, or disclose the following technical data or computer software should be restricted:

 

Technical Data or

 

 

 

Computer Software

 

 

Name of Person

to be Furnished

Basis for

Asserted Rights

Asserting

With Restrictions*

Assertion**

Category***

Restrictions****

(LIST)

(LIST)

(LIST)

(LIST)

 

                    *If the assertion is applicable to items, components, or processes developed at private expense, identify both the technical data and each such item, component, or process.

 

                    **Generally, development at private expense, either exclusively or partially, is the only basis for asserting restrictions on the Government's rights to use, release, or disclose technical data or computer software.  Indicate whether development was exclusively or partially at private expense.  If development was not at private expense, enter the specific reason for asserting that the Government's rights should be restricted.

 

                    ***Enter asserted rights category (e.g., limited rights, restricted rights, government purpose rights, or government purpose license rights from a prior contract, SBIR data rights under another contract, or specifically negotiated licenses).

 

                    ****Corporation, individual, or other person, as appropriate.

 

Date

______________________________

Printed Name and Title

______________________________

 

______________________________

Signature

______________________________

 

(End of identification and assertion)

 

              (4)  When requested by the Contracting Officer, the Contractor shall provide sufficient information to enable the Contracting Officer to evaluate the Contractor's assertions.  The Contracting Officer reserves the right to add the Contractor's assertions to the Attachment and validate any listed assertions, at a later date, in accordance with the procedures of the Validation of Asserted Restrictions--Computer Software and/or Validation of Restrictive Markings on Technical Data clauses of this contract.

 

      (f)  Marking requirements.  The Contractor, and its subcontractors or suppliers, may only assert restrictions on the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software to be delivered under this contract by marking the deliverable data or software subject to restriction.  Except as provided in paragraph (f)(6) of this clause, only the following markings are authorized under this contract: the limited rights legend at paragraph (f)(2) of this clause; the restricted rights legend at paragraph (f)(3) of this clause, the SBIR data rights legend at paragraph (f)(4) of this clause, or the special license rights legend at paragraph (f)(5) of this clause; and/or a notice of copyright as prescribed under 17 U.S.C. 401 or 402.

 

              (1)  General marking instructions.  The Contractor, or its subcontractors or suppliers, shall conspicuously and legibly mark the appropriate legend to all technical data and computer software that qualify for such markings.  The authorized legends shall be placed on the transmittal document or storage container and, for printed material, each page of the printed material containing technical data or computer software for which restrictions are asserted.  When only portions of a page of printed material are subject to the asserted restrictions, such portions shall be identified by circling, underscoring, with a note, or other appropriate identifier.  Technical data or computer software transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions.  However, instructions that interfere with or delay the operation of computer software in order to display a restrictive rights legend or other license statement at any time prior to or during use of the computer software, or otherwise cause such interference or delay, shall not be inserted in software that will or might be used in combat or situations that simulate combat conditions, unless the Contracting Officer's written permission to deliver such software has been obtained prior to delivery.  Reproductions of technical data, computer software, or any portions thereof subject to asserted restrictions shall also reproduce the asserted restrictions.

 

              (2)  Limited rights markings.  Technical data not generated under this contract that pertain to items, components, or processes developed exclusively at private expense and delivered or otherwise furnished with limited rights shall be marked with the following legend:

 


LIMITED RIGHTS


 

Contract No.

 

 

 

Contractor Name

 

 

 

Contractor Address

 

 

 

 

 

 

 

                    The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(2) of the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause contained in the above identified contract.  Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.  Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.

 

(End of legend)

 

              (3)  Restricted rights markings.  Computer software delivered or otherwise furnished to the Government with restricted rights shall be marked with the following legend:

 

RESTRICTED RIGHTS

 

 

 

 

 

Contract No.

 

 

 

Contractor Name

 

 

 

Contractor Address

 

 

 

 

 

 

 

                    The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(3) of the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause contained in the above identified contract.  Any reproduction of computer software or portions thereof marked with this legend must

also reproduce the markings.  Any person, other than the Government, who has been provided access to such software must promptly notify the above named Contractor.

 

(End of legend)

 

              (4)  SBIR data rights markings.  Except for technical data or computer software in which the Government has acquired unlimited rights under paragraph (b)(1) of this clause, or negotiated special license rights as provided in paragraph (b)(5) of this clause, technical data or computer software generated under this contract shall be marked with the following legend.  The Contractor shall enter the expiration date for the SBIR data rights period on the legend:

 

SBIR DATA RIGHTS

 

 

Contract No.

 

 

 

Contractor Name

 

 

 

Contractor Address

 

 

 

 

Expiration of SBIR Data Rights Period

 

 

 

                    The Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software marked with this legend are restricted during the period shown as provided in paragraph (b)(4) of the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause contained in the above identified contract.  No restrictions apply after the expiration date shown above.  Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.

 

(End of legend)

 

              (5)  Special license rights markings.

 

                    (i)  Technical data or computer software in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:

 

SPECIAL LICENSE RIGHTS

 

The Government's rights to use, modify, reproduce, release, perform, display, or disclose this technical data or computer software  are restricted by Contract No. _____(Insert contract number)____, License No. ____(Insert license identifier)____.  Any reproduction of technical data, computer software, or portions thereof marked with this legend must also reproduce the markings.

 

(End of legend)

 

                    (ii)  For purposes of this clause, special licenses do not include government purpose license rights acquired under a prior contract (see paragraph (b)(6) of this clause).

 

              (6)  Pre-existing data markings.  If the terms of a prior contract or license permitted the Contractor to restrict the Government's rights to use, modify, reproduce, release, perform, display, or disclose technical data or computer software, and those restrictions are still applicable, the Contractor may mark such data or software with the appropriate restrictive legend for which the data or software qualified under the prior contract or license.  The marking procedures in paragraph (f)(1) of this clause shall be followed.

 

      (g)  Contractor procedures and records.  Throughout performance of this contract, the Contractor, and its subcontractors or suppliers that will deliver technical data or computer software with other than unlimited rights, shall—

 

              (1)  Have, maintain, and follow written procedures sufficient to assure that restrictive markings are used only when authorized by the terms of this clause; and

 

              (2)  Maintain records sufficient to justify the validity of any restrictive markings on technical data or computer software delivered under this contract.

 

      (h)  Removal of unjustified and nonconforming markings.

 

              (1)  Unjustified markings.  The rights and obligations of the parties regarding the validation of restrictive markings on technical data or computer software furnished or to be furnished under this contract are contained in the Validation of Restrictive Markings on Technical Data and the Validation of Asserted Restrictions--Computer Software clauses of this contract, respectively.  Notwithstanding any provision of this contract concerning inspection and acceptance, the Government may ignore or, at the Contractor's expense, correct or strike a marking if, in accordance with the applicable procedures of those clauses, a restrictive marking is determined to be unjustified.

 

              (2)  Nonconforming markings.  A nonconforming marking is a marking placed on technical data or computer software delivered or otherwise furnished to the Government under this contract that is not in the format authorized by this contract.  Correction of nonconforming markings is not subject to the Validation of Restrictive Markings on Technical Data or the Validation of Asserted Restrictions--Computer Software clause of this contract.  If the Contracting Officer notifies the Contractor of a nonconforming marking or markings and the Contractor fails to remove or correct such markings within sixty (60) days, the Government may ignore or, at the Contractor's expense, remove or correct any nonconforming markings.

 

      (i)  Relation to patents.  Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government under any patent.

 

      (j)  Limitation on charges for rights in technical data or computer software.

 

              (1)  The Contractor shall not charge to this contract any cost, including but not limited to, license fees, royalties, or similar charges, for rights in technical data or computer software to be delivered under this contract when—

 

                    (i)  The Government has acquired, by any means, the same or greater rights in the data or software; or

 

                    (ii)  The data are available to the public without restrictions.

 

              (2)  The limitation in paragraph (j)(1) of this clause—

 

                    (i)  Includes costs charged by a subcontractor or supplier, at any tier, or costs incurred by the Contractor to acquire rights in subcontractor or supplier technical data or computer software, if the subcontractor or supplier has been paid for such rights under any other Government contract or under a license conveying the rights to the Government; and

 

                    (ii)  Does not include the reasonable costs of reproducing, handling, or mailing the documents or other media in which the technical data or computer software will be delivered.

 

      (k)  Applicability to subcontractors or suppliers.

 

              (1)  The Contractor shall assure that the rights afforded its subcontractors and suppliers under 10 U.S.C. 2320, 10 U.S.C. 2321, and the identification, assertion, and delivery processes required by paragraph (e) of this clause are recognized and protected.

 

              (2)  Whenever any noncommercial technical data or computer software is to be obtained from a subcontractor or supplier for delivery to the Government under this contract, the Contractor shall use this same clause in the subcontract or other contractual instrument, and require its subcontractors or suppliers to do so, without alteration, except to identify the parties.  The Contractor shall use the Technical Data--Commercial Items clause of this contract to obtain technical data pertaining to commercial items, components, or processes.  No other clause shall be used to enlarge or diminish the Government's, the Contractor's, or a higher tier subcontractor's or supplier's rights in a subcontractor's or supplier's technical data or computer software.

 

              (3)  Technical data required to be delivered by a subcontractor or supplier shall normally be delivered to the next higher tier contractor, subcontractor, or supplier.  However, when there is a requirement in the prime contract for technical data which may be submitted with other than unlimited rights by a subcontractor or supplier, then said subcontractor or supplier may fulfill its requirement by submitting such technical data directly to the Government, rather than through a higher tier contractor, subcontractor, or supplier.

 

              (4)  The Contractor and higher tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in technical data or computer software from their subcontractors or suppliers.

 

              (5)  In no event shall the Contractor use its obligation to recognize and protect subcontractor or supplier rights in technical data or computer software as an excuse for failing to satisfy its contractual obligation to the Government.

 

(End of clause)

 

ALTERNATE I (JUN 1995)

As prescribed in 227.7104(d), add the following paragraph (l) to the basic clause:

 

      (l)  Publication for sale.

 

              (1)  This paragraph applies only to technical data or computer software delivered to the Government with SBIR data rights.

 

              (2)  Upon expiration of the SBIR data rights period, the Government will not exercise its right to publish or authorize others to publish an item of technical data or computer software identified in this contract as being subject to paragraph (l) of this clause if the Contractor, prior to the expiration of the SBIR data rights period, or within two years following delivery of the data or software item, or within twenty-four months following the removal of any national security or export control restrictions, whichever is later, publishes such data or software item(s) and promptly notifies the Contracting Officer of such publication(s).  Any such publication(s) shall include a notice identifying the number of this contract and the Government's rights in the published data.

 

              (3)  This limitation on the Government's right to publish for sale shall continue as long as the technical data or computer software are reasonably available to the public for purchase.

 

252.227-7019  Validation of Asserted Restrictions--Computer Software.

As prescribed in 227.7104(e)(3) or 227.7203-6(c), use the following clause:

 

VALIDATION OF ASSERTED RESTRICTIONS--COMPUTER SOFTWARE

(JUN 1995)

 

      (a)  Definitions.

 

              (1)  As used in this clause, unless otherwise specifically indicated, the term “Contractor” means the Contractor and its subcontractors or suppliers.

 

              (2)  Other terms used in this clause are defined in the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause of this contract.

 

      (b)  Justification.  The Contractor shall maintain records sufficient to justify the validity of any markings that assert restrictions on the Government's rights to use, modify, reproduce, perform, display, release, or disclose computer software delivered or required to be delivered under this contract and shall be prepared to furnish to the Contracting Officer a written justification for such restrictive markings in response to a request for information under paragraph (d) or a challenge under paragraph (f) of this clause.

 

      (c)  Direct contact with subcontractors or suppliers.  The Contractor agrees that the Contracting Officer may transact matters under this clause directly with subcontractors or suppliers at any tier who assert restrictions on the Government's right to use, modify, reproduce, release, perform, display, or disclose computer software.  Neither this clause, nor any action taken by the Government under this clause, creates or implies privity of contract between the Government and the Contractor's subcontractors or suppliers.

 

      (d)  Requests for information.

 

              (1)  The Contracting Officer may request the Contractor to provide sufficient information to enable the Contracting Officer to evaluate the Contractor's asserted restrictions.  Such information shall be based upon the records required by this clause or other information reasonably available to the Contractor.

 

              (2)  Based upon the information provided, if the—

 

                    (i)  Contractor agrees that an asserted restriction is not valid, the Contracting Officer may—

 

                            (A)  Strike or correct the unjustified marking at the Contractor's expense; or

 

                            (B)  Return the computer software to the Contractor for correction at the Contractor's expense.  If the Contractor fails to correct or strike the unjustified restriction and return the corrected software to the Contracting Officer within sixty (60) days following receipt of the software, the Contracting Officer may correct or strike the markings at that Contractor's expense.

 

                    (ii)  Contracting Officer concludes that the asserted restriction is appropriate for this contract, the Contracting Officer shall so notify the Contractor in writing.

 

              (3)  The Contractor's failure to provide a timely response to a Contracting Officer's request for information or failure to provide sufficient information to enable the Contracting Officer to evaluate an asserted restriction shall constitute reasonable grounds for questioning the validity of an asserted restriction.

 

      (e)  Government right to challenge and validate asserted restrictions.

 

              (1)  The Government, when there are reasonable grounds to do so, has the right to review and challenge the validity of any restrictions asserted by the Contractor on the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software delivered, to be delivered under this contract, or otherwise provided to the Government in the performance of this contract.  Except for software that is publicly available, has been furnished to the Government without restrictions, or has been otherwise made available without restrictions, the Government may exercise this right only within three years after the date(s) the software is delivered or otherwise furnished to the Government, or three years following final payment under this contract, whichever is later.

 

              (2)  The absence of a challenge to an asserted restriction shall not constitute validation under this clause.  Only a Contracting Officer's final decision or actions of an agency Board of Contract Appeals or a court of competent jurisdiction that sustain the validity of an asserted restriction constitute validation of the restriction.

 

      (f)  Challenge procedures.

 

              (1)  A challenge must be in writing and shall—

 

                    (i)  State the specific grounds for challenging the asserted restriction;

 

                    (ii)  Require the Contractor to respond within sixty (60) days;

 

                    (iii)  Require the Contractor to provide justification for the assertion based upon records kept in accordance with paragraph (b) of this clause and such other documentation that are reasonably available to the Contractor, in sufficient detail to enable the Contracting Officer to determine the validity of the asserted restrictions; and

 

                    (iv)  State that a Contracting Officer's final decision, during the three-year period preceding this challenge, or action of a court of competent jurisdiction or Board of Contract Appeals that sustained the validity of an identical assertion made by the Contractor (or a licensee) shall serve as justification for the asserted restriction.

 

              (2)  The Contracting Officer shall extend the time for response if the Contractor submits a written request showing the need for additional time to prepare a response.

 

              (3)  The Contracting Officer may request additional supporting documentation if, in the Contracting Officer’s opinion, the Contractor's explanation does not provide sufficient evidence to justify the validity of the asserted restrictions.  The Contractor agrees to promptly respond to the Contracting Officer's request for additional supporting documentation.

 

              (4)  Notwithstanding challenge by the Contracting Officer, the parties may agree on the disposition of an asserted restriction at any time prior to a Contracting Officer's final decision or, if the Contractor has appealed that decision, filed suit, or provided notice of an intent to file suit, at any time prior to a decision by a court of competent jurisdiction or Board of Contract Appeals.

 

              (5)  If the Contractor fails to respond to the Contracting Officer's request for information or additional information under paragraph (f)(1) of this clause, the Contracting Officer shall issue a final decision, in accordance with the Disputes clause of this contract, pertaining to the validity of the asserted restriction.

 

              (6)  If the Contracting Officer, after reviewing the written explanation furnished pursuant to paragraph (f)(1) of this clause, or any other available information pertaining to the validity of an asserted restriction, determines that the asserted restriction has—

 

                    (i)  Not been justified, the Contracting Officer shall issue promptly a final decision, in accordance with the Disputes clause of this contract, denying the validity of the asserted restriction; or

 

                    (ii)  Been justified, the Contracting Officer shall issue promptly a final decision, in accordance with the Disputes clause of this contract, validating the asserted restriction.

 

              (7)  A Contractor receiving challenges to the same asserted restriction(s) from more than one Contracting Officer shall notify each Contracting Officer of the other challenges.  The notice shall also state which Contracting Officer initiated the first in time unanswered challenge.  The Contracting Officer who initiated the first in time unanswered challenge, after consultation with the other Contracting Officers who have challenged the restrictions and the Contractor, shall formulate and distribute a schedule that provides the Contractor a reasonable opportunity for responding to each challenge.

 

      (g)  Contractor appealľGovernment obligation.

 

              (1)  The Government agrees that, notwithstanding a Contracting Officer's final decision denying the validity of an asserted restriction and except as provided in paragraph (g)(3) of this clause, it will honor the asserted restriction—

 

                    (i)  For a period of ninety (90) days from the date of the Contracting Officer's final decision to allow the Contractor to appeal to the appropriate Board of Contract Appeals or to file suit in an appropriate court;

 

                    (ii)  For a period of one year from the date of the Contracting Officer's final decision if, within the first ninety (90) days following the Contracting Officer's final decision, the Contractor has provided notice of an intent to file suit in an appropriate court; or

 

                    (iii)  Until final disposition by the appropriate Board of Contract Appeals or court of competent jurisdiction, if the Contractor has:

 

                            (A)  appealed to the Board of Contract Appeals or filed suit an appropriate court within ninety (90) days; or

 

                            (B) submitted, within ninety (90) days, a notice of intent to file suit in an appropriate court and filed suit within one year.

 

              (2)  The Contractor agrees that the Government may strike, correct, or ignore the restrictive markings if the Contractor fails to—

 

                    (i)  Appeal to a Board of Contract Appeals within ninety (90) days from the date of the Contracting Officer's final decision;

 

                    (ii)  File suit in an appropriate court within ninety (90) days from such date; or

 

                    (iii)  File suit within one year after the date of the Contracting Officer's final decision if the Contractor had provided notice of intent to file suit within ninety (90) days following the date of the Contracting Officer's final decision.

 

              (3)  The agency head, on a nondelegable basis, may determine that urgent or compelling circumstances do not permit awaiting the filing of suit in an appropriate court, or the rendering of a decision by a court of competent jurisdiction or Board of Contract Appeals.  In that event, the agency head shall notify the Contractor of the urgent or compelling circumstances.  Notwithstanding paragraph (g)(1) of this clause, the Contractor agrees that the agency may use, modify, reproduce, release, perform, display, or disclose computer software marked with (i) government purpose legends for any purpose, and authorize others to do so; or (ii) restricted or special license rights for government purposes only.  The Government agrees not to release or disclose such software unless, prior to release or disclosure, the intended recipient is subject to the use and non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS), or is a Government contractor receiving access to the software for performance of a Government contract that contains the clause at DFARS 252.227-7025, Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.  The agency head's determination may be made at any time after the date of the Contracting Officer's final decision and shall not affect the Contractor's right to damages against the United States, or other relief provided by law, if its asserted restrictions are ultimately upheld.

 

      (h)  Final disposition of appeal or suit.  If the Contractor appeals or files suit and if, upon final disposition of the appeal or suit, the Contracting Officer's decision is:

 

              (1)  Sustained—

 

                    (i)  Any restrictive marking on such computer software shall be struck or corrected at the Contractor's expense or ignored; and

 

                    (ii)  If the asserted restriction is found not to be substantially justified, the Contractor shall be liable to the Government for payment of the cost to the Government of reviewing the asserted restriction and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in challenging the restriction, unless special circumstances would make such payment unjust.

 

              (2)  Not sustained—

 

                    (i)  The Government shall be bound by the asserted restriction; and

 

                    (ii)  If the challenge by the Government is found not to have been made in good faith, the Government shall be liable to the Contractor for payment of fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Contractor in defending the restriction.

 

      (i)  Flowdown.  The Contractor shall insert this clause in all contracts, purchase orders, and other similar instruments with its subcontractors or suppliers, at any tier, who will be furnishing computer software to the Government in the performance of this contract.  The clause may not be altered other than to identify the appropriate parties.

 

(End of clause)

 

252.227-7020  Rights in Special Works.

As prescribed in 227.7105-3, 227.7106(a) or 227.7205(a), use the following clause:

 

RIGHTS IN SPECIAL WORKS (JUN 1995)

 

      (a)  Applicability.  This clause applies to works first created, generated, or produced and required to be delivered under this contract.

 

      (b)  Definitions.  As used in this clause:

 

              (1)  “Computer data base” means a collection of data recorded in a form capable of being processed by a computer.  The term does not include computer software.

 

              (2)  “Computer program” means a set of instructions, rules, or routines recorded in a form that is capable of causing a computer to perform a specific operation or series of operations.

 

              (3)  “Computer software” means computer programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated, or recompiled.  Computer software does not include computer data bases or computer software documentation.

 

              (4)  “Computer software documentation” means owner's manuals, user's manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software.

 

              (5)  “Unlimited rights” means the rights to use, modify, reproduce, perform, display, release, or disclose a work in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

 

              (6)  The term “works” includes computer data bases, computer software, or computer software documentation; literary, musical, choreographic, or dramatic compositions; pantomimes; pictorial, graphic, or sculptural compositions; motion pictures and other audiovisual compositions; sound recordings in any medium; or, items of similar nature.

 

      (c)  License rights.

 

              (1)  The Government shall have unlimited rights in works first produced, created, or generated and required to be delivered under this contract.

 

              (2)  When a work is first produced, created, or generated under this contract, and such work is required to be delivered under this contract, the Contractor shall assign copyright in those works to the Government.  The Contractor, unless directed to the contrary by the Contracting Officer, shall place the following notice on such works:

 

                    “© (Year date of delivery) United States Government, as represented by the Secretary of (department).  All rights reserved.”

 

                    For phonorecords, the “©” marking shall be replaced by a “P”.

 

              (3)  The Contractor grants to the Government a royalty-free, world-wide, nonexclusive, irrevocable license to reproduce, prepare derivative works from, distribute, perform, or display, and to have or authorize others to do so, the Contractor's copyrighted works not first produced, created, or generated under this contract that have been incorporated into the works deliverable under this contract.

 

      (d)  Third party copyrighted data.  The Contractor shall not incorporate, without the written approval of the Contracting Officer, any copyrighted works in the works to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license of the scope identified in paragraph (c)(3) of this clause and, prior to delivery of such works—

 

              (1)  Has affixed to the transmittal document a statement of the license rights obtained; or

 

              (2)  For computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer.

 

      (e)  Indemnification.  The Contractor shall indemnify and save and hold harmless the Government, and its officers, agents and employees acting for the Government, against any liability, including costs and expenses, (1) for violation of proprietary rights, copyrights, or rights of privacy or publicity, arising out of the creation, delivery, use, modification, reproduction, release, performance, display, or disclosure of any works furnished under this contract, or (2) based upon any libelous or other unlawful matter contained in such works.

 

      (f)  Government-furnished information.  Paragraphs (d) and (e) of this clause are not applicable to information furnished to the Contractor by the Government and incorporated in the works delivered under this contract.

 

(End of clause)

 

252.227-7021  Rights in Data--Existing Works.

As prescribed at 227.7105-2(a), use the following clause:

 

RIGHTS IN DATA--EXISTING WORKS (MAR 1979)

 

      (a)  The term “works” as used herein includes literary, musical, and dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and works of a similar nature.  The term does not include financial reports, cost analyses, and other information incidental to contract administration.

 

      (b)  Except as otherwise provided in this contract, the Contractor hereby grants to the Government a nonexclusive, paid-up license throughout the world (1) to distribute, perform publicly, and display publicly the works called for under this contract and (2) to authorize others to do so for Government purposes.

 

      (c)  The Contractor shall indemnify and save and hold harmless the Government, and its officers, agents, and employees acting for the Government, against any liability, including costs and expenses, (1) for violation of proprietary rights, copyrights, or rights of privacy or publicity arising out of the creation, delivery, or use, of any works furnished under this contract, or (2) based upon any libelous or other unlawful matter contained in same works.

 

(End of clause)

 

252.227-7022  Government Rights (Unlimited).

As prescribed at 227.7107-1(a) use the following clause:

 

GOVERNMENT RIGHTS (UNLIMITED) (MAR 1979)

 

The Government shall have unlimited rights, in all drawings, designs, specifications, notes and other works developed in the performance of this contract, including the right to use same on any other Government design or construction without additional compensation to the Contractor.  The Contractor hereby grants to the Government a paid-up license throughout the world to all such works to which he may assert or establish any claim under design patent or copyright laws.  The Contractor for a period of three (3) years after completion of the project agrees to furnish the original or copies of all such works on the request of the Contracting Officer.

 

(End of clause)

 

252.227-7023  Drawings and Other Data to Become Property of Government.

As prescribed at 227.7107-1(b), use the following clause:

 

DRAWINGS AND OTHER DATA TO BECOME PROPERTY OF GOVERNMENT
(MAR 1979)

 

All designs, drawings, specifications, notes and other works developed in the performance of this contract shall become the sole property of the Government and may be used on any other design or construction without additional compensation to the Contractor.  The Government shall be considered the “person for whom the work was prepared” for the purpose of authorship in any copyrightable work under 17 U.S.C. 201(b).  With respect thereto, the Contractor agrees not to assert or authorize others to assert any rights nor establish any claim under the design patent or copyright laws.  The Contractor for a period of three (3) years after completion of the project agrees to furnish all retained works on the request of the Contracting Officer.  Unless otherwise provided in this contract, the Contractor shall have the right to retain copies of all works beyond such period.

 

(End of clause)

 

252.227-7024  Notice and Approval of Restricted Designs.

As prescribed at 227.7107-3, use the following clause:

 

NOTICE AND APPROVAL OF RESTRICTED DESIGNS (APR 1984)

 

In the performance of this contract, the Contractor shall, to the extent practicable, make maximum use of structures, machines, products, materials, construction methods, and equipment that are readily available through Government or competitive commercial channels, or through standard or proven production techniques, methods, and processes.  Unless approved by the Contracting Officer, the Contractor shall not produce a design or specification that requires in this construction work the use of structures, products, materials, construction equipment, or processes that are known by the Contractor to be available only from a sole source.  The Contractor shall promptly report any such design or specification to the Contracting Officer and give the reason why it is considered necessary to so restrict the design or specification.

 

(End of clause)

 

252.227-7025  Limitations on the Use or Disclosure of Government-Furnished Information Marked with Restrictive Legends.

As prescribed in 227.7103-6(c), 227.7104(f)(1), or 227.7203-6(d), use the following clause:

 


LIMITATIONS ON THE USE OR DISCLOSURE OF GOVERNMENT-FURNISHED INFORMATION MARKED WITH RESTRICTIVE LEGENDS (JUN 1995)

 

      (a)(1)  For contracts requiring the delivery of technical data, the terms “limited rights” and “Government purpose rights” are defined in the Rights in Technical Data--Noncommercial Items clause of this contract.

 

              (2)  For contracts that do not require the delivery of technical data, the terms “government purpose rights” and “restricted rights” are defined in the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause of this contract.

 

              (3)  For Small Business Innovative Research program contracts, the terms “limited rights” and “restricted rights” are defined in the Rights in Noncommercial Technical Data and Computer Software--Small Business Innovative Research (SBIR) Program clause of this contract.

 

      (b)  Technical data or computer software provided to the Contractor as Government furnished information (GFI) under this contract may be subject to restrictions on use, modification, reproduction, release, performance, display, or further disclosure.

 

              (1)  GFI marked with limited or restricted rights legends.  The Contractor shall use, modify, reproduce, perform, or display technical data received from the Government with limited rights legends or computer software received with restricted rights legends only in the performance of this contract.  The Contractor shall not, without the express written permission of the party whose name appears in the legend, release or disclose such data or software to any person.

 

              (2)  GFI marked with government purpose rights legends.  The Contractor shall use technical data or computer software received from the Government with government purpose rights legends for government purposes only.  The Contractor shall not, without the express written permission of the party whose name appears in the restrictive legend, use, modify, reproduce, release, perform, or display such data or software for any commercial purpose or disclose such data or software to a person other than its subcontractors, suppliers, or prospective subcontractors or suppliers, who require the data or software to submit offers for, or perform, contracts under this contract.  Prior to disclosing the data or software, the Contractor shall require the persons to whom disclosure will be made to complete and sign the non-disclosure agreement at 227.7103-7 of the Defense Federal Acquisition Regulation Supplement (DFARS).

 

              (3)  GFI marked with specially negotiated license rights legends.  The Contractor shall use, modify, reproduce, release, perform, or display technical data or computer software received from the Government with specially negotiated license legends only as permitted in the license.  Such data or software may not be released or disclosed to other persons unless permitted by the license and, prior to release or disclosure, the intended recipient has completed the non-disclosure agreement at DFARS 227.7103-7.  The Contractor shall modify paragraph (1)(c) of the non-disclosure agreement to reflect the recipient's obligations regarding use, modification, reproduction, release, performance, display, and disclosure of the data or software.

 

      (c)  Indemnification and creation of third party beneficiary rights.  The Contractor agrees—

 

              (1)  To indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses, arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of technical data or computer software received from the Government with restrictive legends by the Contractor or any person to whom the Contractor has released or disclosed such data or software; and

 

              (2)  That the party whose name appears on the restrictive legend, in addition to any other rights it may have, is a third party beneficiary who has the right of direct action against the Contractor, or any person to whom the Contractor has released or disclosed such data or software, for the unauthorized duplication, release, or disclosure of technical data or computer software subject to restrictive legends.

 

(End of clause)

 

252.227-7026  Deferred Delivery of Technical Data or Computer Software.

As prescribed at 227.7103-8(a), use the following clause:

 

DEFERRED DELIVERY OF TECHNICAL DATA OR COMPUTER SOFTWARE

(APR 1988)

 

The Government shall have the right to require, at any time during the performance of this contract, within two (2) years after either acceptance of all items (other than data or computer software) to be delivered under this contract or termination of this contract, whichever is later, delivery of any technical data or computer software item identified in this contract as “deferred delivery” data or computer software.  The obligation to furnish such technical data required to be prepared by a subcontractor and pertaining to an item obtained from him shall expire two (2) years after the date Contractor accepts the last delivery of that item from that subcontractor for use in performing this contract.

 

(End of clause)

 

252.227-7027  Deferred Ordering of Technical Data or Computer Software.

As prescribed at 227.7103-8(b), use the following clause:

 

DEFERRED ORDERING OF TECHNICAL DATA OR COMPUTER SOFTWARE

(APR 1988)

 

In addition to technical data or computer software specified elsewhere in this contract to be delivered hereunder, the Government may, at any time during the performance of this contract or within a period of three (3) years after acceptance of all items (other than technical data or computer software) to be delivered under this contract or the termination of this contract, order any technical data or computer software generated in the performance of this contract or any subcontract hereunder.  When the technical data or computer software is ordered, the Contractor shall be compensated for converting the data or computer software into the prescribed form, for reproduction and delivery.  The obligation to deliver the technical data of a subcontractor and pertaining to an item obtained from him shall expire three (3) years after the date the Contractor accepts the last delivery of that item from that subcontractor under this contract.  The Government's rights to use said data or computer software shall be pursuant to the “Rights in Technical Data and Computer Software” clause of this contract.

 

(End of clause)

 

252.227-7028  Technical Data or Computer Software Previously Delivered to the Government.

As prescribed in 227.7103-6(d), 227.7104(f)(2), or 227.7203-6(e), use the following provision:

 

TECHNICAL DATA OR COMPUTER SOFTWARE PREVIOUSLY DELIVERED TO THE GOVERNMENT (JUN 1995)

 

The Offeror shall attach to its offer an identification of all documents or other media incorporating technical data or computer software it intends to deliver under this contract with other than unlimited rights that are identical or substantially similar to documents or other media that the Offeror has produced for, delivered to, or is obligated to deliver to the Government under any contract or subcontract.  The attachment shall identify—

 

      (a)  The contract number under which the data or software were produced;

 

      (b)  The contract number under which, and the name and address of the organization to whom, the data or software were most recently delivered or will be delivered; and

 

      (c)  Any limitations on the Government's rights to use or disclose the data or software, including, when applicable, identification of the earliest date the limitations expire.

 

(End of provision)

 

252.227-7029  Reserved.

 

252.227-7030  Technical Data--Withholding of Payment.

As prescribed at 227.7103-6(e)(2) or 227.7104(e)(4), use the following clause:

 

TECHNICAL DATA--WITHHOLDING OF PAYMENT (MAR 2000)

 

      (a)  If technical data specified to be delivered under this contract, is not delivered within the time specified by this contract or is deficient upon delivery (including having restrictive markings not identified in the list described in the clause at 252.227-7013(e)(2) or 252.227-7018(e)(2) of this contract), the Contracting Officer may until such data is accepted by the Government, withhold payment to the Contractor of ten percent (10%) of the total contract price or amount unless a lesser withholding is specified in the contract.  Payments shall not be withheld nor any other action taken pursuant to this paragraph when the Contractor's failure to make timely delivery or to deliver such data without deficiencies arises out of causes beyond the control and without the fault or negligence of the Contractor.

 

      (b)  The withholding of any amount or subsequent payment to the Contractor shall not be construed as a waiver of any rights accruing to the Government under this contract.

 

(End of clause)

 

252.227-7031  Reserved.

 

252.227-7032  Rights in Technical Data and Computer Software (Foreign).

As prescribed in 227.7103-17, use the following clause:

 

RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (FOREIGN)
(JUN 1975)

 

The United States Government may duplicate, use, and disclose in any manner for any purposes whatsoever, including delivery to other governments for the furtherance of mutual defense of the United States Government and other governments, all technical data including reports, drawings and blueprints, and all computer software, specified to be delivered by the Contractor to the United States Government under this contract.

 

(End of clause)

 

252.227-7033  Rights in Shop Drawings.

As prescribed at 227.7107-1(c), use the following clause:

 

RIGHTS IN SHOP DRAWINGS (APR 1966)

 

      (a)  Shop drawings for construction means drawings, submitted to the Government by the Construction Contractor, subcontractor or any lower-tier subcontractor pursuant to a construction contract, showing in detail (i) the proposed fabrication and assembly of structural elements and (ii) the installation (i.e., form, fit, and attachment details) of materials or equipment.  The Government may duplicate, use, and disclose in any manner and for any purpose shop drawings delivered under this contract.

 

      (b)  This clause, including this paragraph (b), shall be included in all subcontracts hereunder at any tier.

 

(End of clause)

 

252.227-7034  Patents--Subcontracts.

As prescribed at 227.304-4, insert the following clause:

 

PATENTS--SUBCONTRACTS (APR 1984)

 

The Contractor will include the clause at FAR 52.227-12, Patent Rights--Retention by the Contractor (Long Form), suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental, or research work to be performed by other than a small business firm or nonprofit organization.

 

(End of clause)

 

252.227-7035  Reserved.


252.227-7036  Reserved.

 

252.227-7037  Validation of Restrictive Markings on Technical Data.

As prescribed in 227.7102-3(c), 227.7103-6(e)(3), 227.7104(e)(5), or 227.7203-6(f), use the following clause:

 

VALIDATION OF RESTRICTIVE MARKINGS ON TECHNICAL DATA (SEP 1999)

 

      (a)  Definitions.  The terms used in this clause are defined in the Rights in Technical Data—Noncommercial Items clause of this contract.

 

      (b)  Contracts for commercial items--presumption of development at private expense.  Under a contract for a commercial item, component, or process, the Department of Defense shall presume that a Contractor’s asserted use or release restrictions are justified on the basis that the item, component, or process was developed exclusively at private expense.  The Department shall not challenge such assertions unless information the Department provides demonstrates that the item, component, or process was not developed exclusively at private expense.

 

      (c)  Justification.  The Contractor or subcontractor at any tier is responsible for maintaining records sufficient to justify the validity of its markings that impose restrictions on the Government and others to use, duplicate, or disclose technical data delivered or required to be delivered under the contract or subcontract.  Except under contracts for commercial items, the Contractor or subcontractor shall be prepared to furnish to the Contracting Officer a written justification for such restrictive markings in response to a challenge under paragraph (e) of this clause.

 

      (d)  Prechallenge request for information.

 

              (1)  The Contracting Officer may request the Contractor or subcontractor to furnish a written explanation for any restriction asserted by the Contractor or subcontractor on the right of the United States or others to use technical data.  If, upon review of the explanation submitted, the Contracting Officer remains unable to ascertain the basis of the restrictive marking, the Contracting Officer may further request the Contractor or subcontractor to furnish additional information in the records of, or otherwise in the possession of or reasonably available to, the Contractor or subcontractor to justify the validity of any restrictive marking on technical data delivered or to be delivered under the contract or subcontract (e.g., a statement of facts accompanied with supporting documentation).  The Contractor or subcontractor shall submit such written data as requested by the Contracting Officer within the time required or such longer period as may be mutually agreed.

 

              (2)  If the Contracting Officer, after reviewing the written data furnished pursuant to paragraph (d)(1) of this clause, or any other available information pertaining to the validity of a restrictive marking, determines that reasonable grounds exist to question the current validity of the marking and that continued adherence to the marking would make impracticable the subsequent competitive acquisition of the item, component, or process to which the technical data relates, the Contracting Officer shall follow the procedures in paragraph (e) of this clause.

 

              (3)  If the Contractor or subcontractor fails to respond to the Contracting Officer's request for information under paragraph (d)(1) of this clause, and the Contracting Officer determines that continued adherence to the marking would make impracticable the subsequent competitive acquisition of the item, component, or process to which the technical data relates, the Contracting Officer may challenge the validity of the marking as described in paragraph (e) of this clause.

 

      (e)  Challenge.

 

              (1)  Notwithstanding any provision of this contract concerning inspection and acceptance, if the Contracting Officer determines that a challenge to the restrictive marking is warranted, the Contracting Officer shall send a written challenge notice to the Contractor or subcontractor asserting the restrictive markings.  Such challenge shall—

 

                    (i)  State the specific grounds for challenging the asserted restriction;

 

                    (ii)  Require a response within sixty (60) days justifying and providing sufficient evidence as to the current validity of the asserted restriction;

 

                    (iii)  State that a DoD Contracting Officer's final decision, issued pursuant to paragraph (g) of this clause, sustaining the validity of a restrictive marking identical to the asserted restriction, within the three-year period preceding the challenge, shall serve as justification for the asserted restriction if the validated restriction was asserted by the same Contractor or subcontractor (or any licensee of such Contractor or subcontractor) to which such notice is being provided; and

 

                    (iv)  State that failure to respond to the challenge notice may result in issuance of a final decision pursuant to paragraph (f) of this clause.

 

              (2)  The Contracting Officer shall extend the time for response as appropriate if the Contractor or subcontractor submits a written request showing the need for additional time to prepare a response.

 

              (3)  The Contractor's or subcontractor's written response shall be considered a claim within the meaning of the Contract Disputes Act of 1978 (41 U.S.C. 601, et seq.), and shall be certified in the form prescribed at 33.207 of the Federal Acquisition Regulation, regardless of dollar amount.

 

              (4)  A Contractor or subcontractor receiving challenges to the same restrictive markings from more than one Contracting Officer shall notify each Contracting Officer of the existence of more than one challenge.  The notice shall also state which Contracting Officer initiated the first in time unanswered challenge.  The Contracting Officer initiating the first in time unanswered challenge after consultation with the Contractor or subcontractor and the other Contracting Officers, shall formulate and distribute a schedule for responding to each of the challenge notices to all interested parties.  The schedule shall afford the Contractor or subcontractor an opportunity to respond to each challenge notice.  All parties will be bound by this schedule.

 

      (f)  Final decision when Contractor or subcontractor fails to respond.  Upon a failure of a Contractor or subcontractor to submit any response to the challenge notice, other than a failure to respond under a contract for commercial items, the Contracting Officer will issue a final decision to the Contractor or subcontractor in accordance with the Disputes clause of this contract pertaining to the validity of the asserted restriction.  This final decision shall be issued as soon as possible after the expiration of the time period of paragraph (e)(1)(ii) or (e)(2) of this clause.  Following issuance of the final decision, the Contracting Officer will comply with the procedures in paragraphs (g)(2)(ii) through (iv) of this clause.

 

      (g)  Final decision when Contractor or subcontractor responds.

 

              (1)  If the Contracting Officer determines that the Contractor or subcontractor has justified the validity of the restrictive marking, the Contracting Officer shall issue a final decision to the Contractor or subcontractor sustaining the validity of the restrictive marking, and stating that the Government will continue to be bound by the restrictive marking.  This final decision shall be issued within sixty (60) days after receipt of the Contractor's or subcontractor's response to the challenge notice, or within such longer period that the Contracting Officer has notified the Contractor or subcontractor that the Government will require.  The notification of a longer period for issuance of a final decision will be made within sixty (60) days after receipt of the response to the challenge notice.

 

              (2)(i)  If the Contracting Officer determines that the validity of the restrictive marking is not justified, the Contracting Officer shall issue a final decision to the Contractor or subcontractor in accordance with the Disputes clause of this contract.  Notwithstanding paragraph (e) of the Disputes clause, the final decision shall be issued within sixty (60) days after receipt of the Contractor's or subcontractor's response to the challenge notice, or within such longer period that the Contracting Officer has notified the Contractor or subcontractor of the longer period that the Government will require.  The notification of a longer period for issuance of a final decision will be made within sixty (60) days after receipt of the response to the challenge notice.

 

                    (ii)  The Government agrees that it will continue to be bound by the restrictive marking for a period of ninety (90) days from the issuance of the Contracting Officer's final decision under paragraph (g)(2)(i) of this clause.  The Contractor or subcontractor agrees that, if it intends to file suit in the United States Claims Court it will provide a notice of intent to file suit to the Contracting Officer within ninety (90) days from the issuance of the Contracting Officer's final decision under paragraph (g)(2)(i) of this clause.  If the Contractor or subcontractor fails to appeal, file suit, or provide a notice of intent to file suit to the Contracting Officer within the ninety (90)-day period, the Government may cancel or ignore the restrictive markings, and the failure of the Contractor or subcontractor to take the required action constitutes agreement with such Government action.

 

                    (iii)  The Government agrees that it will continue to be bound by the restrictive marking where a notice of intent to file suit in the United States Claims Court is provided to the Contracting Officer within ninety (90) days from the issuance of the final decision under paragraph (g)(2)(i) of this clause.  The Government will no longer be bound, and the Contractor or subcontractor agrees that the Government may strike or ignore the restrictive markings, if the Contractor or subcontractor fails to file its suit within one (1) year after issuance of the final decision.  Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, that urgent or compelling circumstances will not permit waiting for the filing of a suit in the United States Claims Court, the Contractor or subcontractor agrees that the agency may, following notice to the Contractor or subcontractor, authorize release or disclosure of the technical data.  Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor's or subcontractor's right to damages against the United States where its restrictive markings are ultimately upheld or to pursue other relief, if any, as may be provided by law.

 

                    (iv)  The Government agrees that it will be bound by the restrictive marking where an appeal or suit is filed pursuant to the Contract Disputes Act until final disposition by an agency Board of Contract Appeals or the United States Claims Court.  Notwithstanding the foregoing, where the head of an agency determines, on a nondelegable basis, following notice to the Contractor that urgent or compelling circumstances will not permit awaiting the decision by such Board of Contract Appeals or the United States Claims Court, the Contractor or subcontractor agrees that the agency may authorize release or disclosure of the technical data.  Such agency determination may be made at any time after issuance of the final decision and will not affect the Contractor's or subcontractor's right to damages against the United States where its restrictive markings are ultimately upheld or to pursue other relief, if any, as may be provided by law.

 

      (h)  Final disposition of appeal or suit.

 

              (1)  If the Contractor or subcontractor appeals or files suit and if, upon final disposition of the appeal or suit, the Contracting Officer's decision is sustained—

 

                    (i)  The restrictive marking on the technical data shall be cancelled, corrected or ignored; and

 

                    (ii)  If the restrictive marking is found not to be substantially justified, the Contractor or subcontractor, as appropriate, shall be liable to the Government for payment of the cost to the Government of reviewing the restrictive marking and the fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Government in challenging the marking, unless special circumstances would make such payment unjust.

 

              (2)  If the Contractor or subcontractor appeals or files suit and if, upon final disposition of the appeal or suit, the Contracting Officer's decision is not sustained—

 

                    (i)  The Government shall continue to be bound by the restrictive marking; and

 

                    (ii)  The Government shall be liable to the Contractor or subcontractor for payment of fees and other expenses (as defined in 28 U.S.C. 2412(d)(2)(A)) incurred by the Contractor or subcontractor in defending the marking, if the challenge by the Government is found not to have been made in good faith.

 

      (i)  Duration of right to challenge.  The Government may review the validity of any restriction on technical data, delivered or to be delivered under a contract, asserted by the Contractor or subcontractor.  During the period within three (3) years of final payment on a contract or within three (3) years of delivery of the technical data to the Government, whichever is later, the Contracting Officer may review and make a written determination to challenge the restriction.  The Government may, however, challenge a restriction on the release, disclosure or use of technical data at any time if such technical data—

 

              (1)  Is publicly available;

 

              (2)  Has been furnished to the United States without restriction; or

 

              (3)  Has been otherwise made available without restriction.  Only the Contracting Officer's final decision resolving a formal challenge by sustaining the validity of a restrictive marking constitutes “validation” as addressed in 10 U.S.C. 2321.

 

      (j)  Decision not to challenge.  A decision by the Government, or a determination by the Contracting Officer, to not challenge the restrictive marking or asserted restriction shall not constitute “validation.”

 

      (k)  Privity of contract.  The Contractor or subcontractor agrees that the Contracting Officer may transact matters under this clause directly with subcontractors at any tier that assert restrictive markings.  However, this clause neither creates nor implies privity of contract between the Government and subcontractors.

 

      (l)  Flowdown.  The Contractor or subcontractor agrees to insert this clause in contractual instruments with its subcontractors or suppliers at any tier requiring the delivery of technical data, except contractual instruments for commercial items or commercial components.

 

(End of clause)

 

252.227-7038  Reserved.

 

252.227-7039  Patents--Reporting of Subject Inventions.

As prescribed at 227.303(a), insert the following clause:

 

PATENTS--REPORTING OF SUBJECT INVENTIONS (APR 1990)

 

The Contractor shall furnish the Contracting Officer the following:

 

      (a)  Interim reports every twelve (12) months (or such longer period as may be specified by the Contracting Officer) from the date of the contract, listing subject inventions during that period and stating that all subject inventions have been disclosed or that there are no such inventions.

 

      (b)  A final report, within three (3) months after completion of the contracted work, listing all subject inventions or stating that there were no such inventions.

 

      (c)  Upon request, the filing date, serial number and title, a copy of the patent application and patent number, and issue data for any subject invention for which the Contractor has retained title.

 

      (d)  Upon request, the Contractor shall furnish the Government an irrevocable power to inspect and make copies of the patent application file.

 

(End of clause)

 

 

 


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