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or receiving dock, at the expense of the Contractor. The Government shall not be liable for any delivery, storage, demurrage, accessorial, or other charges involed prior to the actual delivery (or "constructive placement" as defined in carrier tariffs) of the supplies to the destination, unless such charges are caused by an act or order of the Governinent acting in its contractual capacity. If rail carrier is used, supplies will be delivered to the specified unloading platform of the consignee. If motor carrier (including “piggy-back") is used, supplies will be delivered to truck tailgate at the unloading platform of the consignee. If the Contractor uses rail carrier or freight forwarder for less than carload shipments, he shall assure that the carrier will furnish tailgate delivery if transfer to truck is required to complete delivery to consignee. 40. Rights in data-special works (1966 Oct) (ASPR 9-204.2)
(a) The term "Data" as used herein includes writings, sound recordings, pictorial reproductions, drawings or other graphic representations, and works of any similar nature (whether or not copyrighted) which are specified to be delivered under this contract. The term does not include financial reports, cost analyses, and other information incidental to contract administration.
(b) All Data first produced in the performance of this contract shall be the sole property of the Government. The Contractor agrees not to insert any rights at common law or in equity or establish any claim to statutory copyright in such Data. The Contractor shall not publish or reproduce such Data in whole or in part or in any manner or form, or authorize others so to do, without the written consent of the Government until such time as the Government may have released such Data to the public.
(c) The Contractor hereby grants to the Government a royalty-free, nonexclusive, and irrevocable license throughout the world (i) to publish, translate, reproduce, deliver, perform, use, and dispose of, in any manner, any and all Data which is not first produced or composed in the performance of this contract but which is incorporated in the work furnished under this contract, and (ii) to authorize others so to do.
(d) The Contractor shall indemnify and save and hold harmless the Government, its officers, agents and employees acting within the scope of their official duties against any liability, including costs and expenses, (i) for violation of proprietary rights, copyrights, or rights of privacy, arising out of the publication, translation, reproduction, delivery, performance, use, or disposition of any Data furnished under this contract, or (ii) based upon any libelous or other unlawful matter contained in such Data.
(e) Nothing contained in this clause shall imply a licenses 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.
(f) Paragraphs (c) and (d) above are not applicable to material furnished to the Contractor by the Government and incorporated in the work furnished under the contract; provided, such incorporated material is identified by the Contractor at the time of delivery of such work. 41. Rights in data-existing works (1966 Oct) (ASPR 9-205.2)
(a) Except as otherwise provided in the Schedule of this contract, the Contractor hereby grants to the Governinent a royalty-free, nonexclusive, irrevocable license to distribute, use, and exhibit the material called for under this contract for Governmental purposes throughout the world, and to authorize others to do so.
(b) The Contractor shall indemnify and save and hold harmless the Government, its officers, agents, and employees acting within the scope of their official duties against any liability, including costs and expenses, (i) for violation of proprietary rights, copyrights, or rights or privacy, arising out of the distribntion, use, or exhibition of any material furnished under this contract or (ii) based upon any libelous or other unlawful matter contained in said material. 42. Pricing of adjustments (1970 Jul) (DPC 79)
When costs are a factor in any determination of a contract price adjustment pursuant to the “Changes" clause or any other provision of this contract, such costs shall be in accordance with Section XV of the Armed Services Procurement Regulation as in effect on the date of this contract.
COMPENSATION SCHEDULE-ADVERTISING OPERATIONS HOURLY RATES BY DEPARTMENT AND GRADE OF MANPOWER, N. W. AYER & SON, INC., FISCAL YEAR 1971
8. 67 6.64 5.64
16.5 16.5 16.5
3.98 3.05 2. 59
13 13 13
3.66 2. 80 2.38
31.79 24. 35 20. 68
Direct salary rate per hour
General overhead (stated in percent
Profit (stated in percent of
Total hour rate (1)+(3)+(5)) (6)XI(1)+(3)+(5)||(1)+(3)+(5)+(7)]
COMPENSATION SCHEDULE--ADVERTISING OPERATIONS HOURLY RATES BY DEPARTMENT AND GRADE OF MANPOWER, N. W. AYER & SON, INC., FISCAL YEAR 1971-Continued
3.73 2. 39
34. 39 27.53
3. 96 3. 17 1.71
Department overhead stated in percent of direct
General overhead (stated in percent
of ((1) +(3)))
Profit (stated in percent of
Total hour rate
e. Compensation' (1) For all services rendered and supplies furnished, the Contractor shall be paid in accordance with the price contained in the delivery order under which performance is rendered. Each delivery order shall contain a firm, fixed price for the services and/or supplies to be obtained thereunder.
(2) Price shall be established through negotiations for each project conducted by the Contractor and the Contracting Officer; provided, however, the following principles shall apply in arriving at a negotiated price for the services or supplies to be furnished under a delivery order. The Schedule of hourly rates for in house labor, which shall contain the hourly direct salary rate, departmental and general overhead and/profit, is binding on both parties. The contractor shall not add overhead or profit to the proposed cost of subcontracting, materials or other expenses.
(3) In the design, creative work and placement of all forms of advertising in paid media, the following principles related to price shall apply. The Contractor shall not be compensated for services rendered in connection with the design or creative work for any form of advertising created for placement in paid media or for services rendered in the placement of such advertisements in paid media, except by the normal space, cost commission granted to the Contractor by the media. In the event a particular media does not grant the Contractor a space, cost commission for the placement of advertising, the Contractor will be compensated for the design and creative work relating to the advertisement to be placed and the services rendered for the placement in that particular media in the amount mutually agreed upon between the Contractor and the Contracting Officer, to be determined prior to the issuance of the delivery order and incorporated therein. The Contractor shall not be entitled to compensation for design or creative work rendered in connection with the creation of any form of advertising intended to be placed in paid media, which is not so placed. The Contractor shall be compensated for production of advertising to be placed in paid media, including subcontracting and materials, in accordance with subparagraph (1) and (2), above. The proposed cost of placement of advertising in paid media ontained in a submitted proposal shall not exceed the published or certified card or schedule rates for space or time in the media concerned. If cash discounts for prompt payment to media for advertising placed are available to the Contractor, the proposed cost of placement contained in the proposal and, if accepted, in the delivery order shall not exceed the established certified or schedule rates for space or time less the maximum amount of the discount available. Rates contained in proposals shall be those in effect at the time the proposal is submitted.
Mr. VAN DEERLIX. The $100,000 item for evaluation is that a normal function in the advertising business, to conduct an evaluation by the same agency that prepares the campaign and airs it?
Mr. NALLE. I can't tell you what many other agencies do. This is being done by an outside agency, not ourselves.
Mr. VAN DEERLIX. It is not part of your contract, then?
Mr. Walle. No, we are merely the middleman. It is a well known outside research, reputable, organization.
Mr. VAN DEERLIN. Which will reevaluate the results of the campaign you prepared. This is not a part of our subsidiary of the X. W. Ayer Co.?
Mr. NALLE. No.
Mr. Vax DEERLIX. What input by the Department of Defense, if any, went into the preparation of this spot schedule? Did they do filming, or did you do it all? What facilities may they have provided that went into the preparation of the campaign?
Mr. NALLE. It is difficult to answer because we had some 25 or 26 commercials and some have been done at military installations, in
1 See item 12.1 of Standard Form 30. p. 108, this hearing.