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royalty-free, nonexclusive and irrevocable license throughout the world for Government purposes to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others so to do, all technical data now or hereafter covered by copyright.

(2) No such copyrighted matter shall be included in technical data furnished hereunder without the written permission of the copyright owner for the Government to use such copyrighted matter in the manner above described.

(3) The Contractor shall report to the Government (or higher tier Contractor) promptly and in reasonable written detail each notice or claim of copyright infringement received by the Contractor with respect to any technical data delivered hereunder.

(d) 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.

(e) Limitation on charges for data. The Contractor recognizes that the Government, or a foreign government with funds derived through the Military Assistance Program or otherwise through the U.S. Government, may contract for property or services with respect to which the vendor may be liable to the Contractor for charges for the use of technical data on account of such a contract The Contractor further recognizes that it is the policy of the Government not to pay in connection with its contracts, or to allow to be paid in connection with contracts made with funds derived through the Military Assistance Program or otherwise through the U.S. Government, charges for data which the Government has a right to use and disclose to others, which is in the public domain, which the Government has been given without restrictions upon its use and disclosure to others. This policy does not apply to reasonable reproduction, handling, mailing, and similar administrative costs incident to the furnishing of such data. In recognition of this policy, the Contractor agrees to participate in and make appropriate arrangements for the exclusion of such charges from such contracts, or for the refund of amounts received by the Contractor with respect to any such charges not so excluded.

(e) Deferred ordering of technical data. When the ordering of technical data is to be deferred, the following additional clause shall be included in the prime contract. DEFERRED ORDERING OF TECHNICAL DATA

(MAY 1964) The Government shall have the right to order, at any time during the performanco of this contract, or within two (2) years from either acceptance of all items (other than data) to be delivered under this contract or

termination of this contract, whichever is later, any data called for in the Schedule of this contract, and the Contractor shall promptly prepare and deliver such data as is ordered. However, the Contractor shall be relieved of the obligation to furnish data pertaining to an item obtained from a subcontractor upon the expiration of two (2) years from the date he accepts the item. When the data is delivered, payment shall be made, by equitable adjustment or otherwise, for converting the data into the prescribed form, reproducing it, and preparing it for delivery. Such payment shall not be included in the application of any incentive pricing formula.

(f) Identification of experimental, developmental or research work. To prevent any misinterpretation of the scope of the rights in data provisions of the contract, the following schedule provision may be included in contracts which, in whole or in part, call for experimental, developmental or research work as an element of performance. CONTRACT SCHEDULE ITEMS REQUIRING Ex

PERIMENTAL, DEVELOPMENTAL OR RESEARCH WORK (AUGUST 1969)

For purposes of defining, pursuant to Clause ------, entitled “Rights in Technical Data," the nature of the work and the scope of rights in data granted to the Government it is understood and agreed that items (list applicable schedule line items or subline items or data exhibit numbers) require the performance of experimental, developmental, or research work. This clause does not constitute a determination as to whether or not any data required to be delivered under this contract falls within the definition of limited rights data. (30 F.R. 6970, May 25, 1965, as amended at 32 F.R. 531, Jan. 18, 1967; 34 F.R. 17898, Nov. 5, 1969) $ 9.204 Contract clauses; special. [25 F.R. 14251, Dec. 31, 1960) $ 9.204-1 Limitation on Government's

right of publication for sale to the

general public. The paragraph set forth below may be added to the clause set forth in $ 9.203(b) for use in contracts for research when the contracting officer determines, in consultation with patent or legal counsel, as appropriate, that public dissemination of a work, or certain designated parts of a work specified to be delivered under the contract is in the best interest of the Government and would be facilitated by the Government relinquishing its right to publish the work for sale, or to have

others publish the work for sale on behalf of the Government. This paragraph shall not be used otherwise.

( ) Publication for sale. If, within the period designated in the Schedule, but in no event later than twenty-four (24) months after final settlement of this contract, the Contractor publishes for sale any Technical Data which are (1) designated in the Schedule as being subject to this paragraph and (ii) delivered under this contract, and promptly notifies the Contracting Officer of these publications, the Government shall not publish such Data for sale or authorize others so to do. This limitation on the Government's right to publish for sale any such Data so published by the Contractor shall continue as long as the Data are protected by copyright and are reasonably available to the public for purchase. As to all such Data not so published by the Contractor, this paragraph shall be of no force or effect. (32 F.R. 531, Jan. 18, 1967) § 9.204—2 Production of motion pic

tures, histories, and other works. The clause set forth below shall be used in all contracts (a) primarily for the production of motion pictures or television recordings with or without accompanying sound, or for the preparation of motion picture scripts, musical compositions, sound tracks, translations, adaptations, and the like; (b) for histories of the respective Departments or services or units thereof; (c) for works pertaining to recruiting, morale, training, or career guidance; (d) for surveys of Government establishments; and (e) for works pertaining to the instruction or guidance of Government officers and employees in the discharge of their official duties. RIGHTS IN DATASPECIAL WORKS

(OCTOBER 1966) (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 assert 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 (1) 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 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.

(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. (32 F.R. 531, Jan. 18, 1967) § 9.204—3 Histories and other works.

The contract clause set forth in § 9.204–2 is suggested for use in contracts for

(a) Histories of the respective Departments or services or units thereof;

(b) Works pertaining to recruiting, morale, training or career guidance;

(c) Surveys of Government establishments; and

(d) Works pertaining to the instruction or guidance of Government officers and employees in the discharge of their official duties. [25 F.R. 14251, Dec. 31, 1960) $ 9.205

Contracts for acquisition of existing works. [25 F.R. 14251, Dec. 31, 1960]

8 The word “Schedule” may be replaced by the words "Task Order," or other appropriate reference.

66–071–72–

8 9.205–1 Off-the-shelf purchase of $ 9.206 Contracts to be performed outbooks and similar items.

side the United States. Notwithstanding the instructions of (a) Except as otherwise provided in any other sections in this subpart, no $ 6.501 of this chapter, $9.204-2 or contract clause contained in this subpart § 9.205, the clause set forth below shall be need be included in contracts for the sep- included in all contracts under which (1) arate, sole procurement of data, other technical data, including reports, drawthan motion pictures, in the exact form ings, blueprints, or other data is speciin which such material exists prior to fied to be delivered to the Government, the initiation of a request for purchase and (2) the work is to be performed out(such as the off-the-shelf purchases of side the United States, its possessions, existing products) unless the right to re- and Puerto Rico, regardless of the place produce such data is an objective of the of delivery. contract.

RIGHTS IN TECHNICAL DATA (FOREIGN) [25 F.R. 14251, Dec. 31, 1960)

(OCTOBER, 1966) $ 9.205–2 Purchase of existing motion

The U.S. Government may duplicate use, pictures or television recordings. and disclose in any manner for its purposes,

Including delivery to other governments for (a) The following clause shall be used

the furtherance of mutual defense of the U.S. in contracts exclusively for the procure- Government and other governments, all or ment of existing motion pictures or tele- any part of the technical data including revision recordings. The Schedule of the ports, drawings, blueprints, and other data contract may set forth limitations con- specified to be delivered by the Contractor sistent with the purposes for which the

to the U.S. Government under this contract. material covered by the contract is being (b) When the contractor is a foreign procured. Examples of these limitations

government, the above clause shall be are (1) means of exhibition or trans

modified by substituting the name of mission, (2) time, (3) type of audience, the foreign government for “Contractor.” and (4) geographical location. Para

[32 F.R. 532, Jan. 18, 1967) graph (b) of the clause should be modified to make the indemnify coextensive

$ 9.207 Data—Withholding of payment. with the rights acquired under para- (27 F.R. 6136, June 29, 1962] graph (a) of the clause as limited by the

8 9.207-1 General. Schedule of the contract. RIGHTS IN DATA-EXISTING WORKS (OCTOBER

Timely delivery of required data is 1966)

particularly important for competitive

procurement of follow-on quantities of (a) Except as otherwise provided in the

the contract items and of items broken Schedule of this contract, the Contractor

out from an assembly or equipment. hereby grants to the Government a royalty

The clauses set forth in § 9.207-2 are defree, nonexclusive, irrevocable license to distribute, use, and exhibit the material called signed to insure timely delivery of comfor under this contract for Governmental plete and current data. The clauses purposes throughout the world, and to provide for a withholding of ten percent authorize others to do so.

(10%) of the contract price, but the (b) The Contractor shall indemnify and

contracting officer may specify a lesser save and hold harmless the Government, its

amount in the schedule if circumstances officers, agents, and employees acting within

warrant. To insure effective enforcethe scope of their official duties against any

ment of the clause, & case-by-case liability, including costs and expenses, (1) for violation of proprietary rights, copyrights,

determination shall be made by the con

tracting oficer after considering all peror rights of privacy, arising out of the distribution, use, or exhibition of any material

tinent factors, including whether the furnished under this contract, or (11) based

failure to make timely delivery, in acupon any libelous or other unlawful matter

cordance with the delivery schedule as contained in said material.

originally provided or as modified, arises

out of causes beyond the control and (b) In contracts which call for the

without the fault or negligence of the modification of existing motion pictures

contractor. or television recordings through editing,

(27 F.R. 6136, June 29, 1962) translation, or addition of subject matter, the clause of $ 9.204–2, appropriately

$ 9.207-2 Clauses. modified, shall be used.

(a) The following clause shall be in132 F.R. 532, Jan. 18, 1967]

serted in all fixed-price contracts (ex

cept those not exceeding $10,000 or with Subpart C— Foreign License and Techeducational institutions) containing the nical Assistance Agreements clause set forth in § 9.203(b).

SOURCE: The provisions of this Subpart C TECHNICAL DATA-WITHHOLDING OF PAYMENT appear at 25 FR. 14252, Dec. 31, 1960, unless (OCTOBER 1966)

otherwise noted. I "Technical Data" (as defined in the $ 9.301 General. clause of this contract entitled “Rights in Technical Data"), or any part thereof, is not

8 9.301-1 Background. delivered within the time specified by this In furtherance of the Mutual Security contract or is deficient upon delivery (in

Program, or for other national defense cluding having restrictive markings not specifically authorized by this contract), the

purposes, the Government may underContracting Officer may, until such data 18

take to develop or encourage the developdelivered or deficiencies are corrected, with

ment of, foreign additional sources of hold payment to the Contractor of ten per- supply. The development of such sources cent (10%) of the contract price unless a may be accomplished by an agreement, lesser withholding is specified in the Sched- often called a foreign licensing agreeule. Payments shall not be withheld nor ment or technical assistance agreement, any other action taken pursuant to this

wherein a domestic concern, referred to clause where the Contractor's failure to make

in this part as a “primary source”, agrees timely delivery or to deliver such data with

to furnish to a foreign concern or govout deficiencies arises out of causes beyond the control and without the fault or negli

ernment, herein referred to as a “second gence of the Contractor within the meaning

source,” foreign patent rights; technical of the clause hereof entitled “Default.” The assistance in the form of data, know-how, withholding of any amount or subsequent trained personnel of the primary source, payment thereof to the Contractor shall not instruction and guidance of the personbe construed as a waiver of any rights accru- nel of the second source, jigs, dies, fixing to the Government under this contracto tures, or other manufacturing aids; and

such other assistance, (b) The following clause shall be used

information,

rights, or licenses as are needed to enable in all cost-reimbursement type contracts

the second source to produce particular (except contracts with educational in

supplies or perform particular services. stitutions) containing the clause set

Agreements calling for one or more of forth in § 9.203(b).

the foregoing may be entered into beTECHNICAL DATA-WITHHOLDING OF PAYMENT tween the primary source and the Gov(OCTOBER 1966)

ernment, a foreign government, or a I "Technical Data" (as defined in the

foreign concern. The consideration for clause of this contract entitled “Rights in

providing such foreign licenses and techTechnical Data"), or any part thereof, is not

nical assistance may be in the form of a delivered within the time specified by this

lump sum payment, or payments for contract or is deficient upon delivery (in

each item manufactured by the second cluding having restrictive markings not spe

source, or both, an agreement to excifically authorized by the contract), the

change data and patent rights on imContracting Officer may, until such data 18

provements made to the article or delivered or deficiencies are corrected, with- service, capital stock transactions, or any hold payment due the Contractor on account combination of these. The primary of allowable costs and fixed fee, of ten per- source's bases for computing such concent (10%) of the contract price, unless a sideration may include actual cost, lesser withholding is specified in the Sched

charges for the use of patents, data, or ule. Payments shall not be withheld nor

know-how reflecting the primary source's any other action taken pursuant to this

investment in development and engineerclause where the Contractor's failure to make timely delivery or to deliver such data with

ing and production techniques, and the out deficiencies arises out of causes beyond

primary source's "price" for setting up the control and without the fault or negli

a second source. Such agreements often gence of the Contractor within the meaning

refer to the compensation to be paid as a of the clause hereof entitled "Excusable De- royalty or license fee whether or not lays.” The withholding of any amount or patent rights are involved. subsequent payment thereof to the Contractor shall not be construed as a waiver of any

§ 9.301-2 Policy. rights accruing to the Government under It is Government policy not to pay in this contract.

connection with its contracts, and not to 132 F.R. 532, Jan. 18, 1967)

allow to be paid in connection with con

tracts made with funds derived through the Military Assistance Program or otherwise through the U.S. Government, charges for use of patents in which it holds a royalty-free license or charges for data which it has a right to use and disclose to others, or which is in the public domain, or which the Government has acquired without restriction upon its use and disclosure to others. This policy shall be applied by the Departments (a) in negotiating contract prices for foreign license and technical assistance contracts ($ 9.302) or supply contracts with second sources (§ 9.303), and (b) in commenting on such agreements when they are referred to the Department of Defense by the Department of State pursuant to section 414 of the Mutual Security Act of 1954 as amended (22 U.S.C. 1934) and the International Traffic in Arms Regulations (see $ 9.304). [32 F.R. 532, Jan. 18, 1967) $ 9.302 Foreign license and technical

assistance agreements between the

Government and domestic concerns. (a) Contracts between the Government and a primary source to provide technical assistance or patent rights to a second source for the manufacture of supplies or performance of services shall, to the extent practicable, specify the rights in patents and data and any other rights to be supplied to the second source. Each contract shall provide, in connection with any separate agreement between the primary source and the second source for patent rights or technical assistance relating to the articles or services involved in the contract, that

(1) The primary source and his subcontractors shall not make, on account of any purchases by the Government or by others with funds derived through the Military Assistance Program or otherwise through the Government, any charge to the second source for (1) royalties or amortization for patents or inventions in which the Government holds a royalty-free license, or (ii) data which the Government has the right to possess, use, and disclose to others, or (iii) any technical assistance provided to the second source for which the Government has paid under a contract between the Government and the primary source; and

(2) The separate agreement between the primary and second source shall (i)

include a statement referring to the contract between the Government and the primary source, and (ii) conform to the requirements of the International Traffic in Arms Regulations (see $ 9.304).

(b) The following factors, among others, shall be considered in negotiating the price to be paid the primary source under contracts within paragraph (a) of this section.

(1) The actual cost of providing data, personnel, manufacturing aids, samples, spare parts, etc.;

(2) The extent to which the Government has contributed to the development of the supplies or services, and to the methods of manufacture or performance, through past contracts for research and development or for manufacture of the supplies or performance of the services; and

(3) The Government's patent rights and rights in data relating to the supplies or services and to the methods of manufacture or of performance. [25 F.R. 14252, Dec. 31, 1960, as amended at 32 F.R. 533, Jan. 18, 1967] $ 9.303 Supply contracts between the

Government and a foreign govern

ment or concern, In negotiating contract prices with a second source, including the redetermination of contract prices, or in determining the allowability of costs under a cost-reimbursement contract with a second source, the contracting officer:

(a) Shall obtain from the second source a detailed statement (see § 9.110 (a) (3)) of royalties, license fees, and other compensation paid or to be paid to a primary source (or any of his subcontractors) for patent rights, rights in data, and other technical assistance provided to the second source, including identification and description of such patents, data and technical assistance; and

(b) Shall not accept or allow charges which in effect are (1) for royalties or amortization for patents or inventions in which the Government holds a royalty-free license, or (2) for data which the Government has a right to possess, use, and disclose to others, or (3) for any technical assistance provided to the second source for which the Government has paid under a contract between the Government and a primary source. [32 F.R. 533, Jan. 18, 1967]

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