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CONTRACT CLAUSES AND SOLICITATION PROVISIONS 7-104.7 Contract Schedule Subline Items Not Separately Priced. In accordance with 20–304.2(c)(ii) and at the option of the contracting officer, the following clause may be inserted.

CONTRACT SCHEDULE SUBLINE ITEMS NOT SEPARATELY PRICED_WITHHOLDING OF BILLING AND PAYMENT (1970 NOV)

If the unit price of any contract subline or exhibit subline item contained in the Schedule of this contract is not separately priced (“NSP" entered as the unit price column) and the unit price for such subline item is included within the unit price of a related subline item, payment shall not be made nor shall the Contractor invoice the Government for any portion of a contract line item or exhibit line item which contains a “NSP" subline until the total quantity of all related contract subline items or exhibit subline items have been delivered and accepted. This clause is not applicable to Technical Data.

(End of clause)

7-104.8 Reporting and Refund of Royalties.
(a) In accordance with 9–110(d), insert the following clause.

REPORTING OF ROYALTIES (FOREIGN) (1966 OCT)

(a) If this contract is in an amount which exceeds fifty thousand United States dollars ($50,000), the Contractor shall report in writing to the Contracting Officer, during the performance of this contract the amount of royalties paid or to be paid by the Contractor directly to others in the performance of this contract. The Contractor shall also (i) furnish in writing any additional information relating to such royalties as may be requested by the Contracting Officer, and (ii) insert a provision similar to this clause in any subcontract hereunder which involves an amount in excess of the equivalent of fifty thousand United States dollars ($50,000).

(b) The term “royalties” as used herein refers to any costs or charges in the nature of royalties, license fees, patent or license amortization costs, or the like for the use of or for rights in patents or patent applications.

(End of clause)

(b) In accordance with 9-111, insert the following clause.

REFUND OF ROYALTIES (1968 FEB)

(a) The contract price includes certain amounts for royalties payable by the Contractor or subcontractors or both, which amounts have been reported to the Contracting Officer.

(b) The term "royalties” as used in this clause refers to any costs or charges in the nature of royalties, license fees, patent or license amortization costs, or the like, for the use or for rights in patents and patent applications in connection with the performance of this contract or any subcontract hereunder.

(c) The Contractor shall furnish to the Contracting Officer, before final payment under this contract, a statement of royalties paid or required to be paid in connection with the performance of this contract and subcontracts hereunder together with the reasons therefor.

(d) The Contractor will be compensated for royalties reported under (c) above only to the extent that such royalties were included in the contract price and are determined by the Contracting Officer to be properly chargeable to the Government and allocable to the contract. Therefore, to the extent that any royalties which are included in the contract price are not in fact paid by the Contractor or are determined by the Contracting Officer not to be properly chargeable to the Government and allocable to the contract, the contract price shall be reduced. Repayment or credit to the Government shall be made as the Contracting Officer directs.

(e) If, at any time within three (3) years subsequent to final payment under this contract, the Contractor for any reason is relieved in whole or in part from the payment of the royalties included in the final contract price as adjusted pursuant to paragraph (d) above, the Contractor

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ARMED SERVICES PROCUREMENT REGULATION

CONTRACT CLAUSES AND SCLICITATION PROVISIONS

shall promptly notify the Contracting Officer of that fact and shall reimburse the Government in a corresponding amount.

(1) The substance of this clause, including this paragraph (f), shall be included in any subcontract in which the amount of royalties reported during negotiation of the subcontract exceeds two hundred and fifty dollars ($250).

(End of clause)

7-104.9 Rights in Data and Computer Software.

(a) Basic Data Clause. In accordance with 9-203 and 9-603, insert the following clause.

RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (1977 APR) (a) Definitions.

(1) Technical Data means recorded information, regardless of form or characteristic, of a scientific or technical nature. It may, for example, document research, experimental, develop mental or engineering work; or be usable or used to define a design or process or to procure, produce, support, maintain, or operate materiel. The data may be graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design type documents; or computer printouts. Examples of technical data include research and engineering data, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications and related information and computer software documentation. Technical data does not include computer software or financial, administrative, cost and pricing, and management data or other information incidental to contract administration.

(2) Computer - a data processing device capable of accepting data, performing prescribed operations on the data, and supplying the results of these operations; for example, a device that operates on discrete data by performing arithmetic and logic processes on these data, or a device that operates on analog data by performing physical processes on the data.

(3) Computer Software - computer programs and computer data bases.

(4) Computer Program - a series of instructions or statements in a form acceptable to a computer, designed to cause the computer to execute an operation or operations. Computer programs include operating systems, assemblers, compilers, interpreters, data management systems, utility programs, sort-merge programs, and ADPE maintenance/diagnostic programs, as well as applications programs such as payroll, inventory control, and engineering analysis programs. Computer programs may be either machine-dependent or machine-independent, and may be general-purpose in nature or designed to satisfy the requirements of a particular user.

(5) Computer Data Base - a collection of data in a form capable of being processed and operated on by a computer.

(6) Computer Software Documentation - Technical data, including computer listings and printouts, in human-readable form which (i) documents the design or details of computer software, (ii) explains the capabilities of the software, or (iii) provides operating instructions for using the software to obtain desired results from a computer,

(7) Unlimited Rights means rights to use, duplicate, or disclose technical data or computer software in whole or in part, in any manner and for any purpose whatsoever, and to have or permit others to do so.

(8) Limited Rights means rights to use, duplicate, or disclose technical data, in whole or in part, by or for the Government, with the express limitation that such technical data shall not, without the written permission of the party furnishing such technical data be (a) released or disclosed in whole or in part outside the Government, (b) used in whole or in part by the Goverment for manufacture, or in the case of computer software documentation, for preparing the same or similar computer software, or (c) used by a party other than the Government, except for:

(i) emergency repair or overhaul work only, by or for the Government, where the item or process concerned is not otherwise reasonably available to enable timely per

ork, provided that the release or disclosure thereof outside the Government shall be made subject to a prohibition against further use, release or disclosure; or

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CONTRACT CLAUSES AND SOLICITATION PROVISIONS

(ii) release to a foreign government, as the interest of the United States may require,

only for information or evaluation within such government or for emergency repair

or overhaul work by or for such government under the conditions of (i) above. (9) Restricted Righis apply only to computer software, and include, as a minimum, the right to:

(i) use computer software with the computer for which or with which it was acquired,

including use at any Government installation to which the computer may be trans

ferred by the Government; (ii) use computer software with a backup computer if the computer for which or with

which it was acquired is inoperative; (iii) copy computer programs for safekeeping (archives) or backup purposes; (iv) modify computer software, or combine it with other software, subject to the provi

sion that those portions of the derivative software incorporating restricted rights software are subject to the same restricted rights; and, in addition, any other specific rights not inconsistent therewith listed or described in this contract or described in a license or agreement made a part of this

contract. (b) Government Rights. (1) Unlimited Rights. The Government shall have unlimited rights in: (i) technical data and computer software resulting directly from performance of experi

mental, developmental or research work which was specified as an element of per

formance in this or any other Government contract or subcontract; (ii) computer software required to be originated or developed under a Government con

tract, or generated as a necessary part of performing a contract; (iii) computer data bases, prepared under a Government contract, consisting of informa

tion supplied by the Government, information in which the Government has un

limited rights, or information which is in the public domain; (iv) technical data necessary to enable manufacture of end-items, components and

modifications, or to enable the performance of processes, when the end-items, components, modifications or processes have been, or are being, developed under this or any other Government contract or subcontract in which experimental, developmental or research work is, or was specified as an element of contract performance, except technical data pertaining to items, components, processes, or computer software

developed at private expense (but see (2)(ii) below); (v) technical data or computer software prepared or required to be delivered under this

or any other Government contract or subcontract and constituting corrections or

changes to Government-fumished data or computer software; (vi) technical data pertaining to end-items; components or processes, prepared or

required to be delivered under this or any other Government contract or subcontract, for the purpose of identifying sources, size, configuration, mating and altachment characteristics, functional characteristics and performance requirements ("form, fit and function" data, 4.8., specification control drawings, catalog sheets,

envelope drawings, etc.); (vii) manuals or instructional materials prepared or required to be delivered under this

contract or any subcontract hereunder for installation, operation, maintenance or

training purposes; (viii) technical data or computer software which is in the public domain, or has been or is

normally released or disclosed by the Contractor or subcontractor without restriction on further

disclosure; and (ix) technical data or computer software listed or described in an agreement incorporated

into the schedule of this contract which the parties have predetermined, on the basis of subparagraphs (i) through (viii) above, and agreed will be furnished with un

limited rights. (2) Limited Rights. The Government shall have limited rights in: (i) technical data, listed or described in an agreement incorporated into the Schedule of

this contract, which the parties have agreed will be furnished with limited rights; and

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ARMED SERVICES PROCUREMENT REGULATION

(ii) unpublished technical data pertaining to items,

components or processes developed at private expense, and unpublished computer software documentation related to computer software that is acquired with restricted rights, other than such data as may be included in the data

referred to in (b)(1)(i), (v), (vi), (vii), and (viii); provided that only the portion or portions of each piece of data to which limited rights are to be asserted pursuant to (2)(i) and (ii) above are identified (for example, by circling, underscoring, or a note), and that the piece of data is marked with the legend below in which is inserted:

A. the number of the prime contract under which the technical data is to be

delivered,
B. the name of the Contractor and any subcontractor by whom the technical data

was generated, and
C. an explanation of the method used to identify limited rights data.

LIMITED RIGHTS LEGEND

ACT NO. .......

Contractor: .

Explanation of Limited Rights Data Identification Method Used

Those portions of this technical data indicated as limited rights data shall not, without the written permission of the above Contractor, be either (a) used, released or disclosed in whole or in part outside the Government, (b) used in whole or in part by the Government for manufacture or, in the case of computer software documentation, for preparing the same or similar computer software, or (c) used by a party other than the Government, except for: (i) emergency repair or overhaul work only, by or for the Government, where the item or process concerned is not otherwise reasonably available to enable timely performance of the work, provided that the release or disclosure hereof outside the Government shall be made subject to a prohibition against further use, release or disclosure; or (ü) release to a foreign government, as the interest of the United States may require, only for information or evaluation within such government or for emergency repair or overhaul work by or for such government under the conditions of (i) above. This legend, together with the indications of the portions of this data which are subject to such limitations shall be included on any reproduction hereof which includes any part of the portions subject to such limitations.

(3) Restricted Righis. The Government shall have restricted rights in computer software, listed or described in a license or agreement made a part of this contract, which the partics have agreed will be furnished with restricted rights, provided, however, notwithstanding any contrary provision in any such license or agreement, the Government shall have the rights in (a)(9)(i) through iv. Such restricted rights are of no effect unless the computer software is marked by the Contractor with the following legend:

RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure is subject to
restrictions stated in Contract No. ......
with ................Name of Contractor)...

and the related computer software documentation includes a prominent statement of the restrictions applicable to the computer software. The Contractor may not place any legend on computer software indicating restrictions on the Government's rights in such software unless the restrictions are set forth in a license or agreement made a part of this contract prior to the delivery date of the software. Failure of the Contractor to apply a restricted rights legend to such computer software shall relieve the Government of liability with respect to such unmarked software.

(4) No legend shall be marked on, nor shall any limitation or restriction on rights of use be asserted as to, any data or computer software which the Contractor has previously delivered to the Government without restriction. The limited or restricted rights provided for by this para

7-104.9
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CONTRACT CLAUSES AND SOLICITATION PROVISIONS

graph shall not impair the right of the Government to use similar or identical data or computer
software acquired from other sources.
(c) Copyright

(1) In addition to the rights granted under the provisions of (b) above, the Contractor hereby grants to the Government a nonexclusive, paid-up license throughout the world, of the scope set forth below, under any copyright owned by the Contractor, in any work of authorship prepared for or acquired by the Government under this contract, to reproduce the work in copies or phonorecords, to distribute copies or phonorecords to the public, to perform or display the work publicly, and to prepare derivative works thereof, and to have others do so for Government purposes. With respect to technical data and computer software in which the Government has unlimited rights, the license shall be of the same scope as the rights defined in (a)(7). With respect to technical data in which the Government has limited rights, the scope of the license is limited to the rights defined in (a)(8). With respect to computer software which the parties have agreed in accordance with (b)(3) will be furnished with restricted rights, the scope of the license is limited to such rights.

(2) Unless written approval of the Contracting Officer is obtained, the Contractor shall not include in technical data or computer software prepared for or acquired by the Government under this contract any works of authorship in which copyright is not owned by the Contractor without acquiring for the Government any rights necessary to perfect a copyright license of the scope specified in (c)(1).

(3) As between the Contractor and the Government, the Contractor shall be considered the "person for whom the work was prepared" for the purpose of determining authorship under Section 201(b) of Title 17, United States Code.

(4) Technical data delivered under this contract which carries a copyright notice shall also include the following statement which shall be placed thereon by the Contractor, or should the contractor fail, by the Government:

This material may be reproduced by or for
the U.S. Government purusant to the copyright

license under DAR clause 7-104.9(a)(date).
(d) Removal of Unauthorized Markings. Notwithstanding any provision of this contract con-
cerning inspection and acceptance, the Government may correct, cancel, or ignore any marking
not authorized by the terms of this contract on any technical data or computer software furnished
hereunder, if:

(i) the Contractor fails to respond within sixty (60) days to a written inquiry by the

Government concerning the propriety of the markings, or
(ü) the Contractor's response fails to substantiate, within sixty (60) days after written

notice, the propriety of limited rights markings by clear and convincing evidence, or
of restricted rights markings by identification of the restrictions set forth in the con-

tract.
In either case the Government shall give written notice to the Contractor of the action taken.

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

7-104.9

40-0800 - 80 - 7

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