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.

(g) 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 Government 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 shall be added to the clause in paragraph (b) of this section in all negotiated contracts in which experimental, developmental or research work is specified as an element of contract performance and in which the procedure of § 9.202-2(d), concerning predetermination of rights in data, is to be followed:

(h) The Contractor will promptly notify the Contracting Officer in writing of the intended use in the performance of the contract of any end-item, component, modification or process for which the Contractor intends to furnish data with limited rights; Provided, That no such notice is required with respect to standard commercial items which are manufactured by more than one source of supply or with respect to data which the parties have specified in the Schedule would be furnished with limited rights. Subcontractors will notify the next higher tier Contractor. (February 1965.)

(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 ACQUISITION (MAY 1964)

(a) Definition. "Technical data" as used in this clause means technical writings, 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 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
(ΜΑΥ 1964)

The Government shall have the right to order, at any time during the performance 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.

[30 F.R. 6970, May 25, 1965, as amended at 32 F.R. 531, Jan. 18, 1967]

§ 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 pictures, 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 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.

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

(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]

§ 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, (i) 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 (ii) 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.

[32 F.R. 532, Jan. 18, 1967]

§ 9.206 Contracts to be performed outside 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 of delivery.

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]

§ 9.207 Data—Withholding of payment. [27 F.R. 6136, June 29, 1962] § 9.207-1 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. 6136, June 29, 1962]

(a) The following clause shall be inserted in all fixed-price contracts (except those not exceeding $10,000 or with educational institutions) containing the clause set forth in § 9.203(b).

TECHNICAL DATA-WITHHOLDING OF PAYMENT (OCTOBER 1966)

If "Technical Data" (as defined in the clause of this contract entitled "Rights in Technical Data"), or any part thereof, is not delivered within the time specified by this contract or is deficient upon delivery (including having restrictive markings not specifically authorized by this contract), the Contracting Officer may, until such data is delivered or deficiencies are corrected, withhold payment to the Contractor of ten percent (10%) of the contract price unless a lesser withholding is specified in the Schedule. Payments shall not be withheld nor any other action taken pursuant to this clause where the Contractor's failure to make timely delivery or to deliver such data without deficiencies arises out of causes beyond the control and without the fault or negligence of the Contractor within the meaning of the clause hereof entitled "Default." The withholding of any amount or subsequent payment thereof to the Contractor shall not be construed as a waiver of any rights accruing to the Government under this contract.

(b) The following clause shall be used in all cost-reimbursement type contracts (except contracts with educational institutions) containing the clause set forth in § 9.203(b).

TECHNICAL DATA-WITHHOLDING OF PAYMENT (OCTOBER 1966)

If "Technical Data" (as defined in the clause of this contract entitled "Rights in Technical Data"), or any part thereof, is not delivered within the time specified by this contract or is deficient upon delivery (including having restrictive markings not specifically authorized by the contract), the Contracting Officer may, until such data is delivered or deficiencies are corrected, withhold payment due the Contractor on account of allowable costs and fixed fee, of ten percent (10%) of the contract price, unless a lesser withholding is specified in the Schedule. Payments shall not be withheld nor any other action taken pursuant to this clause where the Contractor's failure to make timely delivery or to deliver such data without deficiencies arises out of causes beyond the control and without the fault or negligence of the Contractor within the meaning of the clause hereof entitled "Excusable Delays." The withholding of any amount or subsequent payment thereof to the Contractor shall not be construed as a waiver of any rights accruing to the Government under this contract.

[32 F.R. 532, Jan. 18, 1967]

In furtherance of the Mutual Security Program, or for other national defense purposes, the Government may undertake to develop or encourage the development of, foreign additional sources of supply. The development of such sources may be accomplished by an agreement, often called a foreign licensing agreement or technical assistance agreement, wherein a domestic concern, referred to in this part as a "primary source", agrees to furnish to a foreign concern or government, herein referred to as a "second source," foreign patent rights; technical assistance in the form of data, know-how, trained personnel of the primary source, instruction and guidance of the personnel of the second source, jigs, dies, fixtures, or other manufacturing aids; and such other assistance, information, rights, or licenses as are needed to enable the second source to produce particular supplies or perform particular services. Agreements calling for one or more of the foregoing may be entered into between the primary source and the Government, a foreign government, or a foreign concern. The consideration for providing such foreign licenses and technical assistance may be in the form of a lump sum payment, or payments for each item manufactured by the second source, or both, an agreement to exchange data and patent rights on improvements made to the article or service, capital stock transactions, or any combination of these. The primary source's bases for computing such consideration may include actual cost, charges for the use of patents, data, or know-how reflecting the primary source's investment in development and engineering and production techniques, and the primary source's "price" for setting up a second source. Such agreements often refer to the compensation to be paid as a royalty or license fee whether or not patent rights are involved.

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 (i) 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