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or research work which was specified as an element of performance in this or any other Government contract or subcontract;

(u) 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 or processes developed at private expense (but see (2) (ii) below);

(111) Technical data constituting corrections or changes to Government-furnished data;

(iv) Technical data pertaining to enditems, components or processes which was prepared for the purpose of identifying sources, size, configuration, mating and attachment characteristics, functional characteristics and performance requirements (form, fit, and function" data, e.g., specification control drawings, catalog sheets, envelope drawings, etc.);

(v) Manuals or instructional materials prepared for installation, operation, maintenance or training purposes;

(vi) Other technical data which has been, or is normally furnished without restriction by the Contractor or subcontractor; and

(vii) Technical data listed or described in an agreement incorporated into the Schedule of this contract, which the parties have predetermined, on the basis of subparagraphs (1) through (vi) above, and agreed will be furnished with unlimited rights.

(2) The Government shall have limited rights in:

(1) 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

(11) Technical data pertaining to items, components or processes developed at private expense, other than such data as may be included in the data referred to in (b) (1) (1), (11), (iv), (v), and (vi); Provided that each piece of data to which limited rights are to be asserted pursuant to (2) (1) and (u) above is marked with the following legend in which is inserted the number of the prime contract under which the technical data is to be delivered and the name of the Contractor or subcontractor by whom the technical data was generated:

This technical data, furnished under U.S. Government Contract No. ------------, shall not, without the written permission of -----

----, 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 (c) used by a party other than the Government, except for: (1) Emergency repair or overhaul work only, by or for the Govern

ment, 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 (b) release to a foreign government, as the interest of the United States may require, only for information or evalu. ation within such government or for emergency repair or overhaul work by or for such government under the conditions of (1) above. This legend shall be marked on any reproduction hereof in whole or in part. No legend shall be marked on, nor shall any limitation on rights of use be asserted as to, any data which the Contractor has previously delivered to the Government without restriction. The limited rights provided for by this paragraph (b) (2) shall not impair the right of the Government to use similar or identical data acquired from other sources.

(c) Material covered by copyright. (1) Notwithstanding the provisions of (b) above, the Contractor agrees to and does hereby grant to the Government, and to its officers, agents, and employees acting within the scope of their official duties, a 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 described above.

(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) Removal of unauthorized markings. Notwithstanding any provisions of this contract concerning inspection and acceptance, the Government may modify, remove, obliterate, or ignore any marking not authorized by the terms of this contract on any technical data furnished hereunder, if

(1) The Contractor fails to respond within sixty (60) days to a written inquiry by the Government concerning the propriety of the use of the marking, or

(11) The Contractor's response fails to substantiate his contention that the use of the marking is authorized, in which case the Government shall give written notice to the Contractor.

(e) 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.

(1) 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 techni. cal 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, or 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.

(8) Acquisition of data from subcontractors. (1) Whenever any technical data is to be obtained from a subcontractor under this contract, the Contractor shall use this same clause in the subcontract, without alteration, and no other clause shall be used to enlarge or diminish the Government's or the Contractor's rights in that subcontractor data which is required for the Government.

(2) Technical data required to be delivered by a subcontractor shall normally be delivered to the next higher-tier Contractor. However, when there is a requirement in the prime contract, or in the deferred order, for data which may be supplied with limited rights pursuant to (b) (2) above, a subcontractor may fulfill such requirement by submitting such data directly to the Gopernment rather than through the prime Contractor.

(3) The Contractor and higher-tier subcontractors will not use their power to award subcontracts as economic leverage to acquire rights in data from their subcontractors for themselves.

(c) Notice of certain limited rights. The paragraph (h) set forth below may be added to the clause in paragraph (b) of this section in any contract in which the contracting officer desires notification of limited rights data (see $ 9.202-2(h)).

(h) (1) Unless the Schedule provides otherwise, and subject to (2) below, the contractor will promptly notify the Contracting Officer in writing of the intended use by the Contractor or a subcontractor in performance of this contract of any item, component or process for which data (called for by this

contract,)(whether or not called for by this contract,) ' suitable for competitive procurement, would fall within paragraph (b) (2) above (1.e., 11 and when furnished, might be furnished with limited rights).

(2) Such notification is not required with respect to:

(1) Standard commercial items which are manufactured by more than one source of supply; or

(11) Items, components or processes for which such notice was given pursuant to predetermination of rights in data in connection with this contract.

(3) Contracting Officer approval is not necessary under this clause for the Contractor to use the item, component or process in the performance of the contract. (August 1969)

(d) Technical data clause-specific acquisition. The following clause shall be used in contracts in which all technical data is to be acquired with unlimited rights pursuant to $ 9.202–2(g). In addition, if the Government has determined to acquire all technical data with unlimited rights from a subcontractor pursuant to $ 9.202–2(g), the following clause shall be used in the subcontract in lieu of the Rights in Technical Data clause whether or not the prime contract makes provision therefor. The clause shall not be used under any other circumstances. RIGHTS IN TECHNICAL DATA-SPECIFIC ACQUI

SITION (MAY 1964) (a) Definition. "Technical data" as used in this clause means technical writing, sound recordings, pictorial reproductions drawings, or other graphic representations and works of a technical nature, whether or not copyrighted, which are specified to be delivered pursuant to this contract. The term does not include financial reports, cost analyses, and other information incidental to contract administration.

(b) Government rights. The Government may duplicate, use and disclose in any manner and for any purpose whatsoever, and have others so do, all or any part of the technical data delivered by the Contractor to the Government under this contract.

(c) Material covered by copyright.

(1) The Contractor agrees to and does hereby grant to the Government, and to its officers, agents, and employees acting within the scope of their official duties, a

1 Use this language, without brackets, unless the language at 2 is used.

2 Use this language, without brackets, when the data is not called for under the present contract, but the Contracting Officer is reasonably sure that data suitable for competitive procurment will be called for in follow-on contracts.

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 li. cense 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 be 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). 8 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 oficer 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 (11) 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 FR. 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 DATA-SPECIAL WORKS

(OCTOBER 1966) (a) The term "Data" as used herein in. cludes 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 Con. tractor 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 (il) 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, (1) 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] 8 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)

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

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$9.206 Contracts to be performed out

side the United States. (a) Except as otherwise provided in $ 6.501 of this chapter, § 9.204–2 or § 9.205, the clause set forth below shall be included in all contracts under which (1) technical data, including reports, drawings, blueprints, or other data is specified to be delivered to the Government, and (2) the work is to be performed outside the United States, its possessions, and Puerto Rico, regardless of the place

$9.205-1 Off-the-shelf purchase of

books and similar items. Notwithstanding the instructions of any other sections in this subpart, no contract clause contained in this subpart need be included in contracts for the separate, sole procurement of data, other than motion pictures, in the exact form in which such material exists prior to the initiation of a request for purchase (such as the off-the-shelf purchases of existing products) unless the right to reproduce such data is an objective of the contract. [25 F.R. 14251, Dec. 31, 1960] $ 9.205–2 Purchase of existing motion

pictures or television recordings. (a) The following clause shall be used in contracts exclusively for the procurement of existing motion pictures or television recordings. The Schedule of the contract may set forth limitations consistent with the purposes for which the material covered by the contract is being procured. Examples of these limitations are (1) means of exhibition or transmission, (2) time, (3) type of audience, and (4) geographical location. Paragraph (b) of the clause should be modified to make the indemnify coextensive with the rights acquired under paragraph (a) of the clause as limited by the Schedule of the contract. RIGHTS IN DATA-EXISTING WORKS (OCTOBER

1966) (a) Except as otherwise provided in the Schedule of this contract, the Contractor hereby grants to the Government a royaltyfree, 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, (1) for violation of proprietary rights, copyrights, or rights of privacy, arising out of the distribution, use, or exhibition of any material furnished under this contract, or (11) based upon any libelous or other unlawful matter contained in said material.

(b) In contracts which call for the modification of existing motion pictures or television recordings through editing, translation, or addition of subject matter, the clause of $ 9.204–2, appropriately modified, shall be used. 132 F.R. 532, Jan. 18, 1967)

RIGHTS IN TECHNICAL DATA (FOREIGN)

(OCTOBER, 1966) The U.S. Government may duplicate use, and disclose in any manner for its purposes, including delivery to other governments for the furtherance of mutual defense of the U.S. Government and other governments, all or any part of the technical data including reports, drawings, blueprints, and other data specified to be delivered by the Contractor to the U.S. Government under this contract.

(b) When the contractor is a foreign government, the above clause shall be modified by substituting the name of the foreign government for “Contractor.” (32 F.R. 532, Jan. 18, 1967] 8 9.207 Data— Withholding of payment. 127 F.R. 6136, June 29, 1962] $9.207-) General.

Timely delivery of required data is particularly important for competitive procurement of follow-on quantities of the contract items and of items broken out from an assembly or equipment. The clauses set forth in % 9.207–2 are designed to insure timely delivery of complete and current data. The clauses provide for a withholding of ten percent (10%) of the contract price, but the contracting officer may specify a lesser amount in the schedule if circumstances warrant. To insure effective enforcement of the clause, a case-by-case determination shall be made by the contracting officer after considering all pertinent factors, including whether the failure to make timely delivery, in accordance with the delivery schedule as originally provided or as modified, arises out of causes beyond the control and without the fault or negligence of the contractor. (27 F.R. 6138, June 29, 1962) § 9.207—2 Clauses.

(a) The following clause shall be inserted in all fixed-price contracts (ex

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