As prescribed in 27.409(a), insert the following clause with
any appropriate alternates:
Alternate IV (JUN 1987). As prescribed in 27.409(e), substitute
the following subparagraph (c)(1) in the clause:
RIGHTS IN DATA--GENERAL (JUN 1987) ALTERNATE IV
(a) Definitions.
'Computer software', as used in this clause, means computer
programs, computer data bases, and documentation thereof.
'Data', as used in this clause, means recorded information
regardless of form or the media on which it may be recorded. The
term includes technical data and computer software. The term does
not include information incidental to contract administration, such
as financial, administrative, cost or pricing, or management
information.
'Form, fit, and function data,' as used in this clause means
data relating to items, components, or processes that are sufficient
to enable physical and functional interchangeability, as well as data
identifying source, size, configuration, mating, and attachment
characteristics, functional characteristics, and performance
requirements; except that for computer software it means data identifying
source, functional characteristics, and performance requirements
but specifically excludes the source code, algorithm, process,
formulae, and flow charts of the software.
'Limited rights', as used in this clause, means the rights of
the Government in limited rights data as set forth in the Limited Rights
Notice of subparagraph (g)(2) if included in this clause.
'Limited rights data', as used in this clause, means data
(other than computer software) that embody trade secrets or are
commercial or financial and confidential or privileged, to the
extent that such data pertain to items, components, or processes
developed at private expense, including minor modifications thereof.
'Restricted computer software', as used in this clause, means
computer software developed at private expense and that is a trade
secret; is commercial or financial and is confidential or privileged;
or is published copyrighted computer software; including minor
modifications of such computer software.
'Restricted rights', as used in this clause, means the rights of
the Government in restricted computer software, as set forth in a
Restricted Rights Notice of subparagraph (g)(3) if included in this
clause or as otherwise may be provided in a collateral agreement
incorporated in and made part of this contract, including minor
modifications of such computer software.
'Technical data', as used in this clause, means data (other
than computer software) which are of a scientific or technical nature.
'Unlimited rights', as used in this clause, means the right of
the Government to use, disclose, reproduce, prepare derivative works,
distribute copies to the public, and perform publicly and display
publicly, in any manner and for any purpose, and to have or permit
others to do so (b) Allocation of rights. (1) Except as provided in
paragraph (c) of this clause regarding copyright, the Government shall
have unlimited rights in--
(i) Data first produced in the performance of this contract;
(ii) Form, fit, and function data delivered under this
contract;
(iii) Data delivered under this contract (except for
restricted computer software) that constitute manuals or instructional
and training material for installation, operation, or routine maintenance
and repair of items, components, or processes delivered or furnished
for use under this contract; and
(iv) All other data delivered under this contract unless
provide otherwise for limited rights data or restricted computer
software in accordance with paragraph (g) of this clause.
(2) The contractor shall have the right to--
(i) Use, release to others, reproduce, distribute, or publish
any data first produced or specifically used by the Contractor in
the performance of this contract, unless provided otherwise in
paragraph (d) of this clause;
(ii) Protect from unauthorized disclosure and use those data
which are limited rights data or restricted computer software to the
extent provided in paragraph (g) of this clause;
(iii) Substantiate use of, add or correct limited rights,
restricted rights, or copyright notices and to take other appropriate
action, in accordance with paragraphs (e) and (f) of this clause; and
(iv) Establish claim to copyright subsisting in data first
produced in the performance of this contract to the extent provided
in subparagraph (c)(1) of this clause.
(c) 'Copyright. (1) 'Data First Produced in the Performance of the
Contract'. Except as otherwise specifically provided in this contract
the Contractor may establish claim to copyright subsisting in any data
first produced in the performance of this contract. When claim to
copyright is made, the Contractor shall affix the applicable copyright
notice of 17 U.S.C. 401 or 402 and acknowledgment of Government
sponsorship (including contract number) to the data when such data are
delivered to the Government, as well as when the data are published or
deposited for registration as a published work in the U.S. Copyright
Office. For data other than computer software, the Contractor grants to
the Government, and others acting on its behalf, a paid-up, nonexclusive,
irrevocable, worldwide license for all such data to reproduce, prepare
derivative works, distribute copies to the public, and perform publicly
and display publicly, by or on behalf of the Government. For computer
software, the Contractor grants to the Government and others acting on
its behalf, a paid-up, nonexclusive, irrevocable worldwide license for
all such computer software to reproduce, prepare derivative works, and
perform publicly and display publicly, by or on behalf of the Government.
(2) 'Data not first produced in the performance of this contract.'
The Contractor shall not, without prior written permission of the
Contracting Officer, incorporate in data delivered under this contract
any data not first produced in the performance of this contract and
which contains the copyright notice of 17 U.S.C. 401 or 402, unless the
Contractor identifies such data and grants to the Government, or acquires
on its behalf, a license of the same scope as set forth in subparagraph
(c)(1) of this clause; 'provided', however, that if such data are
computer software the Government shall acquire a copyright license as set
forth in subparagraph (g)(3) of this clause if included in this contract
or as otherwise may be provided in a collateral agreement incorporated
in or made part of this contract.
(3) 'Removal of copyright notices.' The Government agrees not to
remove any copyright notices placed on data pursuant to this paragraph
(c), and to include such notices on all reproductions of the data.
(d) 'Release, publication and use of data.' (1) The Contractor
shall have the right to use, release to others, reproduce, distribute,
or publish any data first produced or specifically used by the
Contractor in the performance of this contract, except to the extent such
data may be subject to the Federal export control or national security
laws or regulations, or unless otherwise provided in this paragraph
of this clause or expressly set forth in this contract.
(2) The Contractor agrees that to the extent it receives or is
give access to data necessary for the performance of this contract
which contain restrictive markings, the Contractor shall treat the
data in accordance with such markings unless otherwise specifically
authorized in writing by the Contracting Officer.
(e) 'Unauthorized marking of data.' Notwithstanding any other
provisions of this contract concerning inspection or acceptance, if
any data delivered under this contract are marked with the notices
specified in subparagraph (g)(2) or (g)(3) of this clause, and use
of such is not authorized by this clause, or if such data bears any
other restrictive or limiting markings not authorized by this
contract, the Contracting Officer may at any time either return the data
to the Contractor, or cancel or ignore the markings. However, the
following procedures shall apply prior to canceling or ignoring the
markings.
(i) The Contracting Officer shall make written inquiry to the
Contractor affording the Contractor 30 days from receipt of the inquiry
to provide written justification to substantiate the propriety of the
markings;
(ii) If the Contractor fails to respond or fails to provide
written justification to substantiate the propriety of the markings
within the 30-day period (or a longer time not exceeding 90 days approve
in writing by the Contracting Officer for good cause shown), the
Government shall have the right to cancel or ignore the markings at any
time after said period and the data will no longer be made subject to any
disclosure prohibitions.
(iii) If the Contractor provides written justification to
substantiate the propriety of the markings within the period set in
subdivision (e)(1)(i) of this clause, the Contracting Officer shall
consider such written justification and determine whether or not the
markings are to be canceled or ignored. If the Contracting Officer
determines that the markings are authorized, the Contractor shall be
so notified in writing. If the Contracting Officer determines, with
concurrence of the head of the contracting activity, that the markings
are not authorized, the Contracting Officer shall furnish the
Contractor a written determination, which determination shall become the
final agency decision regarding the appropriateness of the markings
unless the Contractor files suit in court of competent jurisdiction
within 90 days of receipt of the Contracting Officer's decision. The
Government shall continue to abide by the markings under this
subdivision (e)(1)(iii) until final resolution of the matter either by
the Contracting Officer's determination becoming final (in which
instance the Government shall thereafter have the right to cancel or
ignore the markings at any time and the data will no longer be made
subject to any disclosure prohibitions), or by final disposition of
the matter by court decision if suit is filed.
(2) The time limits in the procedures set forth in subparagraph
(e)(1) of this clause may be modified in accordance with agency
regulations implementing the Freedom of Information Act (5 U.S.C. 552) if
necessary to respond to a request thereunder.
(3) This paragraph (e) does not apply if this contract is for a
major system or for support of a major system by a civilian agency
other than NASA and the U.S. Coast Guard agency subject to the
provisions of Title III of the Federal Property and Administrative
Services Act of 1949
(4) Except to the extent the Government's action occurs as a
result of final disposition of the matter by a court of competent
jurisdiction, the Contractor is not precluded by this paragraph (e)
from bringing a claim under the Contract Disputes Act, including
pursuant to the Dispute clause of this contract, as applicable, that may
arise as the result of the Government removing or ignoring authorized
markings on data delivered under this contract.
(f) 'Omitted or incorrect markings.'
(1) Date delivered to the Government without either the limited
rights or restricted rights notice as authorized by paragraph (g) of
this clause or the copyright notice required by paragraph (c) of this
clause, shall deemed to have been furnished with unlimited rights,
and the Government assumes no liability for the disclosure, use, or
reproduction of such data. However, to the extent the data has not
been disclosed without restriction outside the Government, the
Contractor may request, within 6 months (or a longer time approved by
the Contracting Officer for good cause shown) after delivery of such
data, permission to have notices placed on qualifying data at the
Contractor's expense, and the Contracting Officer may agree to do so
if the Contractor--
(i) Identifies the data to which the omitted notice is to be
applies;
(ii) Demonstrates that the omission of the notice was
inadvertent
(iii) Establishes that the use of the proposed notice is
authorized; and
(iv) Acknowledges that the Government has no liability with
respect to the disclosure, use, or reproduction of any such data made
prior to the addition of the notice or resulting from the omission of
the notice.
(2) The Contracting Officer may also (i) permit correction at the
Contractor's expense of incorrect notices if the Contractor
identifies the data on which correction of the notice is to be made, and
demonstrates that the correct notice is authorized, or (ii) correct
any incorrect notice.
(g) 'Protection of limited rights data and restricted computer
software'
(1) When data other than that listed in subdivisions (b)(1)(i),
(ii) and (iii) of this clause are specified to be delivered under
this contract and qualify as either limited rights data or restricted
computer software if the Contractor desires to continue protection
of such data and not furnish them to the Government under this
contract. As a condition to this withholding, the Contractor shall
identify the data being withheld and furnish form, fit, and function
data in lieu thereof. Limited rights data that are formatted as a
computer data base for delivery to the Government are to be treated
as limited rights data and not restricted computer software.
(2) Reserved.
(3) Reserved.
(h) 'Subcontracting.' The Contractor has the responsibility to
obtain from its subcontractors all data and rights therein necessary
to fulfill the Contractor's obligations to the Government under this
contract. If a subcontractor refuses to accept terms affording the
Government such rights, the Contractor shall promptly bring such
refusal to the attention of the Contracting Officer and not proceed
with subcontract award without further authorization.
(i) 'Relationship 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.
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