or higher, the Contractor shall, citing the thirty (30) day provision below, transmit the proposed application to the Contracting Officer for determination whether, for reasons of national security, such application should be placed under an order of secrecy or sealed in accordance with the provisions of 35 U.S.C. 181-188 or the issuance of a patent should be otherwise delayed under pertinent United States statutes or regulations; and the Contractor shall observe any instructions of the Contracting Officer with respect to the manner of delivery of the patent application to the United States Patent Office for filing, but the Contractor shall not be denied the right to file such patent application. If the Contracting Officer shall not have given any such instructions within thirty (30) days from the date of mailing or other transmittal of the proposed application, the Contractor may file the application.

(b) The Contractor shall furnish to the Contracting Officer, at the time of or prior to the time when the Contractor files or causes to be filed a patent application in the United States disclosing any subject matter of this contract, which subject matter is classified "Confidential", a copy of such application for determination whether, for reasons of national security, such application should be placed under an order of secrecy or the issuance of a patent should be otherwise delayed under pertinent United States statutes or regulations.

(c) Where the subject matter of this contract is classified for reasons of security, the Contractor shall not file, or cause to be filed in any country, other than in the United States as provided in (a) and (b) of this clause, an application or registration for a patent containing any of said subject matter without first obtaining written approval of the Contracting Officer.

(d) When filing any patent application coming within the scope of this clause, the Contractor shall observe all applicable security regulations covering the transmission of classified subject matter, and shall also promptly furnish to the Contracting Officer the serial number, filing date, and name of country of any such patent application. When transmitting the application to the United States Patent Office, the Contractor shall by separate letter identify by agency and number the contract or contracts which require security classification markings to be placed on the application.

(e) The substance of this clause shall be included in all subcontracts which cover or are likely to cover classified subject matter.

(End of clause)

§ 12-7.151-3 Reporting of royalties (foreign).

Insert the following clause under the conditions prescribed in DOTPR 129.156 (d)(1).

REPORTING OF ROYALTIES (FOREIGN)

(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)

§ 12-7.151-4 Refund of royalties.

Insert the following clause under the conditions prescribed in DOTPR 129.157

REFUND OF ROYALTIES

(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 subcontracts 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 deter

mined by the Contracting Officer to be properly chargeable to the Government and allowable 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 shall promptly notify the Contracting Officer of that fact and shall reimburse the Government in a corresponding amount.

(f) 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 $250.

Insert the following clause under the conditions prescribed in DOTPR 129.201-1(a). Alterations in the clause may be made under the conditions prescribed in DOTPR 12-9.201-2.

RIGHTS IN DATA-UNLIMITED

(a) The term "subject data" as used herein means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this contract. The term includes graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or photographs; design-type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to, engineering drawings and associated lists, specifications, standards, process sheets, manual, technical reports, catalog item identifications, and related information. The term does not include financial reports, cost analyses, and similar information incidental to contract administration.

(b) (1) The Government may duplicate, use, and disclose in any manner and for any purpose whatsoever, and have others to so do, all subject data delivered under this contract.

(2) 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 royaltyfree, non-exclusive, irrevocable license throughout the world, to publish, translate, deliver, perform, dispose of, and to authorize others to so do, all subject data now or hereafter covered by copyright.

(3) The Contractor shall report to the Contracting Officer promptly and in reasonably written detail, each notice or claim of copyright infringement with respect to all subject data delivered under this contract.

(c) 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.

(d) The Contractor shall not affix any restrictive markings upon any subject data, and if such markings are affixed, the Government shall have the right at any time to modify, remove, obliterate or ignore any such markings.

(End of clause)

§ 12-7.151-6 Rights in data-title.

Insert the following clause under the conditions prescribed in DOTPR 129.201-1(b). Alterations in the clause may be made under the conditions prescribed in DOTPR 12-9.201-2.

RIGHTS IN DATA-TITLE

(a) The term "subject data" as used herein means recorded information, whether or not copyrighted, that is delivered or specified to be delivered under this contract. The term includes graphic or pictorial delineations in media such as drawings or photographs; text in specifications or related performance or design-type documents; machine forms such as punched cards, magnetic tape, or computer memory printouts; and information retained in computer memory. Examples include, but are not limited to, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identifications, and related information. The term does not include financial reports, cost analyses, and similar information incidental to contract administration.

(b) All "subject 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 equity and not to establish any claim to statutory copyright in such data. Except for his own internal use, the Contractor shall not publish or reproduce such data in whole or in part, or in any manner or form, nor authorize others so to do, without the written consent of the Gov

ernment until such time as the Government may have released such data to the Public.

(c) The Contractor agrees to grant 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 (1) to publish, translate, reproduce, deliver, perform, use, and dispose of, in any manner, any and all data not first produced or composed in the performance of this contract but which is incorporated in the work furnished under this contract; and (2) 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, resulting from any willful or intentional violation by the Contractor of proprietary rights, copyrights, or right of privacy, arising out of the publication, translation, reproduction, delivery, performance, use, or disposition of any data furnished under this contract.

(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.

(End of clause)

§ 12-7.151-7 Recovery of developmental costs.

Insert the following clause under the conditions prescribed in DOTPR 129.702.

RECOVERY OF DEVELOPMENTAL COSTS

(a) As may be determined by the contracting officer to be fair, reasonable and equitable, the contractor shall pay to the Government up to 5% of sums hereafter received by or credited to the Contractor or its privies (including subcontractors) on sales or leases (exclusive of sales or leases to the U.S. Government, either directly or indirectly through Government prime contractors or subcontractors) of any product which is substantially the same in design as, or which is directly derived from, that developed by the Contractor or any of its subcontractors in the performance of this contract.

(b) In selling or leasing the product identified in paragraph (a) above to the Govern

ment, either directly or indirectly through Government prime Contractors or subcontractors, the Contractor or its privies (including subcontractors) shall notify the purchaser or lessee in writing that the product was developed under a Department of Transportation contract containing a Recovery of Development Costs clause and that the purchase or lease price of such product is less than the price of such product when sold or leased to other than the Government by an amount no less than the Government's share under the Recovery of Developmental Costs clause. A copy of each such notice shall be sent to the Contracting Officer. In the event the product is sold or leased to the Government, the amount by which the sales or lease price was reduced by virtue of this clause shall be credited to the amount recoverable under this clause.

(c) As may be determined by the Contracting Officer to be fair, reasonable and equitable, the Contractor shall also pay to the Government up to 33% of all sums hereafter received by, or credited to, the Contractor or its privies (including subcontractors) as payments under technical agreements permitting others (1) to sell, lease, or manufacture the product identified in paragraph (a) above, or (2) to use any process which is substantially the same as, or which is directly derived from, that developed by the Contractor or any of its subcontractors in the performance of this contract.

(d) Recovery by the Government under this clause shall be limited to amounts paid and credited to the Contractor under this contract. Payments to the Government under this clause shall not be so high as to destroy the Contractor's competitive position for the product involved, provided that the product is otherwise reasonably priced and efficiently and economically produced.

(e) The Contractor shall report to the Government all sales, leases, licensing agreements, royalties and receipts, which might reasonably be considered to be subject to this clause; and the Contractor shall promptly render accurate, certified accounts thereon to the Government at reasonable intervals.

(End of clause)

§ 12-7.151-8 Government furnished property.

(a) Except as provided in (b) and (c) below, insert the following clause in the contract when property will be furnished by the Government in the performance of this contract:

GOVERNMENT FURNISHED PROPERTY

(a) Property administration. The Contractor shall establish and administer a system

to control, protect, preserve and maintain Government property in his possession or under his control or that of his subcontractors. Such a system must be satisfactory to the Contracting Officer, and in accordance with this clause and any other requirements of the contract.

(b) Government-furnished property. (1) The Government shall deliver to the Contractor, for use in connection with and under the terms of this contract, the property described as Government-furnished

property in the Schedule or specifications, together with such related data and information as the Contractor may request and as may reasonably be required for the intended use of such property (hereinafter referred to as "Government-furnished property”).

(2) The delivery or performance dates for the supplies or services to be furnished by the Contractor under this contract are based upon the expectation that Government-furnished property suitable for use will be delivered to the Contractor at the time stated in the Schedule or, if not so stated, in sufficient time to enable the Contractor to meet such delivery or performance dates.

(3) If the Schedule does not state a date when Government-furnished property will be delivered, the Contractor shall notify the Contracting Officer in writing of the date by which he requires such property to meet the contract delivery or performance dates. The Contractor shall allow a minimum of 30 days for delivery of Government-furnished property, unless a different time is specified in the Schedule. If not received five days before the date it is required by the Contractor, the Contracting Officer shall be so notified.

(4) If Government-furnished property is not delivered to the Contractor by the date specified in the Schedule, or by the date specified by the Contractor pursuant to (3) above, the Contracting Officer shall, upon timely request made by the Contractor, make a determination of the delay, if any, occasioned the Contractor and shall equitably adjust the delivery or performance dates or the contract price, or both, and any other contractual provision affected by any such delay, in accordance with the procedures of the "Changes" clause of this contract.

(5) In the event that Government-furnished property is received by the Contractor in a condition not suitable for intended use (except for such property furnished "as is" or otherwise specified), the Contractor shall upon receipt thereof, notify the Contracting Officer of such fact and, as directed by the Contracting Officer, either (i) return such property at the Government's expense or otherwise dispose of the property, or (ii) effect repairs or modifications. Upon completion of (i) or (ii) above, the Contracting

officer upon request of the Contractor shall equitably adjust the delivery or performance dates or the contract price or both, and any other contractual provisions affected by the return or disposition, or the repair or modification, in accordance with the procedures of the "Changes" clause of this contract.

(6) The foregoing provisions for adustment are exclusive and the Government shall not be liable to suit for breach of contract by reason of any delay in delivery of Government-furnished property or delivery of such property in a condition not suitable for its intended use.

(c) Changes in Government-furnished property. (1) By notice in writing, the Contracting Officer may: (i) Decrease the property provided or to be provided by the Government under this contract, or (ii) substitute other Government-owned property for property to be provided by the Government or to be acquired by the Contractor for the Government under this contract. The Contractor shall promptly take such action as the Contracting Officer may direct with respect to the removal and shipping of property covered by such notice.

(2) In the event of any decrease in or substitution of property pursuant to paragraph (c)(1) above, or any withdrawal of authority to use property provided under any other contract or lease, which property the Government had agreed in the Schedule to make available for the performance of this contract, the Contracting Officer, upon the written request of the Contractor or on his own initiative (if the substitution of property causes a decrease in the cost of performance), shall equitably adjust such contractual provisions as may be affected by the decrease, substitution, or withdrawal, in accordance with the procedures provided for in the "Changes" clause of this contract.

(d) Title to property. Title to all property furnished by the Government shall remain in the Government. Title to Government property shall not be affected by the incorporation or attachment thereof to any property not owned by the Government, nor shall such Government property, or any part thereof, be or become a fixture or lose its identity as personalty of reason affixation to any realty.

(e) Use of Government-furnished property. The Government-furnished property shall, unless otherwise provided herein or approved by the Contracting Officer, be used only for the performance of this contract.

(f) Maintenance and repair of Government property. The Contractor shall maintain and administer, in accordance with sound industrial practice, a program for the maintenance, repair, protection, and preservation of Government property, while in custody of the Contractor. In the event that

any damage occurs to Government property the risk of which has been assumed by the Government under this contract, the Government shall replace such items or the Contractor shall make such repair of the property as the Government directs: Provided, however, That if the Contractor cannot effect such repair within the time required, the Contractor shall dispose of such property in the manner directed by the Contracting Officer. The contract price includes no compensation to the Contractor for the performance of any repair or replacement for which the Government is responsible, and an equitable adjustment will be made in any contractual provisions affected by such repair or replacement of Government property made at the direction of the Government in accordance with the procedures provided for in the "Changes" clause of this contract. Where replacement parts are provided at the expense of the Government, the parts which are displaced remain the property of the Government. Any repair or replacement for which the Contractor is responsible under the provisions of this contract shall be accomplished by the Contractor at his own expense.

(g) Risk of loss. Unless otherwise provided in this contract, the Contractor assumes the risk of, and shall be responsible for, any loss or damage to Goverment property provided under this contract upon its delivery to him or any of his subcontractors or upon passage of title thereto to the Government as provided in paragraph (d) hereof, except for reasonable wear and tear and except to the entent that such property is justifiably consumed in the performance of this contract. The Contractor shall not be liable for loss or destruction of or damage to Government property if such loss, destruction or damage is due to causes beyond the control and without the fault or negligence of the Contractor or any of his subcontractors.

(h) Access. The Government, and any persons designated by it, shall at all reasonable times have access to the premises wherein any Government property is located, for the purpose of inspecting the Government property, or inventorying the same, or removing any part or all of the same, or for determining compliance with terms of the contract.

(i) Final accounting and disposition of Government property. Upon the completion of this contract, or at such earlier dates as may be fixed by the Contracting Officer, the Contractor shall submit, in a form acceptable to the Contracting Officer, inventory schedules covering all items of Government property not justifiably consumed in the performance of this contract (including any resulting scrap) or not theretofore delivered to the Government, and shall prepare for shipment, deliver f.o.b. origin (unless otherwise provided in the contract), or dispose of the Government property, as

may be directed or authorized by the Contracting Officer. The net proceeds of any such disposal shall be credited to the contract price or shall be paid in such other manner as the Contracting Officer may direct.

(j) Notification. The Contractor shall notify the Contracting Officer as soon as Government-furnished property is no longer required for performance of the contract. All shipments of Government-furnished property not delivered as an end item of the contract shall be effected only upon receipt of shipping instructions signed by the Contracting Officer or his duly authorized representative.

(k) Restoration of Contractor's premises. Unless otherwise provided herein, the Government: (1) May abandon any Government property in place, and thereupon all obligations of the Government regarding such abandoned property shall cease; (2) shall not be under any duty or obligation to restore or rehabilitate, or to pay the costs of the restoration or rehabilitation of, the Contractor's plant or any portion thereof which is affected by the abandonment or removal of any Government property; (3) shall be indemnified against all suits or claims arising out of the Government's failure to restore or rehabilitate the Contractor's property or the property of subcontractors, except for such damage as may be occasioned by the negligence of the Government, its agents, its employees, or independent contractors.

(1) Communications. All communications issued pursuant to this clause shall be in writing.

NOTE: If this contract is with other than a United States firm or individual, the terms "Government" or "Government-furnished", wherever they appear in the text, are defined as meaning "United States Government."

(End of clause)

(b) In negotiated fixed-price contracts, when the Contracting Officer determines it inappropriate to place liability on the contractor for loss, destruction, or damage to Governmentfurnished property (e.g., where the cost of insurance against the potential liability is so high as to be unjustified when the value of the property is compared to the contract price), paragraph (g) of the clause shall be deleted and the paragraph (g) set forth in ASPR 7-104.24(c) substituted therefor.