This text is not in eCFR or DITA. It is extracted from the Revolutionary FAR Overhaul deviation guide for FAR Part 46. The parsed text is a convenience layer; the Source PDF tab is authoritative. Always verify against the official deviation PDF.
- (b) Warranty. Notwithstanding inspection and acceptance by the Government of technical data furnished under this contract, and notwithstanding any provision of this contract concerning the conclusiveness of acceptance, the Contractor warrants that all technical data delivered under this contract will at the time of delivery conform with the specifications and all other requirements of this contract. The warranty period shall extend for three years after completion of the delivery of the line item of data (as identified in DD Form 1423, Contract Data Requirements List) of which the data forms a part; or any longer period specified in the contract.
- (c) Contractor Notification. The Contractor agrees to notify the Contracting Officer in writing immediately of any breach of the above warranty which the Contractor discovers within the warranty period.
- (d) Remedies. The following remedies shall apply to all breaches of the warranty, whether the Contractor notifies the Contracting Officer in accordance with paragraph (c) of this clause or if the Government notifies the Contractor of the breach in writing within the warranty period:
- (1) Within a reasonable time after such notification, the Contracting Officer may—
- (i) By written notice, direct the Contractor to correct or replace at the Contractor's expense the nonconforming technical data promptly; or
- (ii) If the Contracting Officer determines that the Government no longer has a requirement for correction or replacement of the data, or that the data can be more reasonably corrected by the Government, inform the Contractor by written notice that the Government elects a price or fee adjustment instead of correction or replacement.
- (2) If the Contractor refuses or fails to comply with a direction under paragraph (d)(1)(i) of this clause, the Contracting Officer may, within a reasonable time of the refusal or failure—
- (i) By contract or otherwise, correct or replace the nonconforming technical data and charge the cost to the Contractor; or
- (ii) Elect a price or fee adjustment instead of correction or replacement.
- (3) In addition to the remedies under paragraphs (d)(1) and (2) of this clause, the Contractor shall be liable to the Government for all damages to the Government as a result of the breach of the warranty.
- (i) The additional liability under paragraph (d)(3) of this clause shall not exceed ten percent of the total contract price.
- (ii) If the breach of the warranty is with respect to the data supplied by an equipment subcontractor, the limit of the Contractor's liability shall be—
- (A) Ten percent of the total subcontract price in a firm[-]fixed[-]price subcontract;
- (B) Seventy-five percent of the total subcontract fee in a cost-plusfixed-fee or cost-plus-award-fee subcontract; or
- (C) Seventy-five percent of the total subcontract target profit or fee in a fixed-price-incentive or cost-plus-incentive subcontract.
- (iii) The additional liability specified in paragraph (d)(3) of this clause shall not apply—
- (A) With respect to the requirements for product drawings and associated lists, special inspection equipment (SIE) drawings and associated lists, special tooling drawings and associated lists, SIE operating instructions, SIE descriptive documentation, and SIE calibration procedures under MIL-T-31000, General Specification for Technical Data Packages, Amendment 1, or MIL-T-47500, General Specification for Technical Data Packages, Supp 1, or drawings and associated lists under level 2 or level 3 of MIL-D-1000A, Engineering and Associated Data Drawings, or DoD-D-1000B, Engineering and Associated Lists Drawings (Inactive for New Design) Amendment 4, Notice 1; or drawings and associated lists under category E or I of MIL-D-1000, Engineering and Associated Lists Drawings, provided that the data furnished by the Contractor was current, accurate at time of submission, and did not involve a significant omission of data necessary to comply with the requirements; or
- (B) To defects the Contractor discovers and gives written notice to the Government before the Government discovers the error.
- (e) The provisions of this clause apply anew to that portion of any corrected or replaced technical data furnished to the Government under paragraph (d)(1)(i) of this clause.
Version history
14 versions on record. Each version corresponds to a republished deviation guide.
- 2026-06-12 17:34:13 current · effective February 1, 2026
- 2026-06-12 17:22:59 · effective February 1, 2026
- 2026-06-12 15:50:22 · effective February 1, 2026
- 2026-06-12 15:39:03 · effective February 1, 2026
- 2026-06-12 14:01:13 · effective February 1, 2026
- 2026-06-12 13:49:58 · effective February 1, 2026
- 2026-06-12 11:59:42 · effective February 1, 2026
- 2026-06-12 11:48:26 · effective February 1, 2026
- 2026-06-12 09:18:29 · effective February 1, 2026
- 2026-06-12 09:16:19 · effective February 1, 2026
- 2026-06-11 16:27:31 · effective February 1, 2026
- 2026-06-11 16:24:57 · effective February 1, 2026
- 2026-06-11 15:53:55 · effective February 1, 2026
- 2026-06-11 15:51:14 · effective February 1, 2026
Changes in the current version
--- previous +++ current @@ -1,667 +1,41 @@ 252.227-7989 Rights in Technical Data, Computer Software, and Computer -Software Documentation—Other Than Commercial Products and -Commercial Services. (DEVIATION 2026-O0036) -As prescribed in 227.7103-6(a) and (c), use the following clause: -RIGHTS IN TECHNICAL DATA, COMPUTER SOFTWARE, AND COMPUTER -SOFTWARE DOCUMENTATION—OTHER THAN COMMERCIAL PRODUCTS OR -COMMERCIAL SERVICES (DEVIATION 2026-O0036) (FEB 2026) -(a) Definitions. As used in this clause— -“Commercial computer software” means software developed or regularly used for -nongovernmental purposes which— -(1) Has been sold, leased, or licensed to the public; -(2) Has been offered for sale, lease, or license to the public; -(3) Has not been offered, sold, leased, or licensed to the public but will be -available for commercial sale, lease, or license in time to satisfy the delivery -requirements of this contract; or -(4) Satisfies a criterion expressed in paragraph (1), (2), or (3) of this definition -and would require only minor modification to meet the requirements of this contract. -“Computer database” means a collection of data recorded in a form capable of being -processed by a computer. The term does not include computer software. -“Computer program” means a set of instructions, rules, or routines recorded in a form -that is capable of causing a computer to perform a specific operation or series of -operations. -“Computer software” means computer programs, source code, source code listings, -object code listings, design details, algorithms, processes, flow charts, formulae and -related material that would enable the software to be reproduced, recreated, or -recompiled. Computer software does not include computer databases or computer -software documentation. -“Computer software documentation” means owner’s manuals, user’s manuals, -installation instructions, operating instructions, and other similar items, regardless of -storage medium, that explain the capabilities of the computer software or provide -instructions for using the software. -“Covered Government support contractor” means a contractor (other than a litigation -support contractor covered by 252.204-7014) under a contract, the primary purpose of -which is to furnish independent and impartial advice or technical assistance directly to -the Government in support of the Government’s management and oversight of a -program or effort, rather than to directly furnish an end item or service to accomplish a -program or effort, provided that the contractor— -Page 40 of 104 +Software Documentation—Other Than Commercial Products or Commercial +Services. +(b) Warranty. Notwithstanding inspection and acceptance by the Government of +technical data furnished under this contract, and notwithstanding any provision of +this contract concerning the conclusiveness of acceptance, the Contractor warrants +that all technical data delivered under this contract will at the time of delivery +conform with the specifications and all other requirements of this contract. The +warranty period shall extend for three years after completion of the delivery of the +Page 15 of 33 Attachment A1 -(1) Is not affiliated with the prime contractor or a first-tier subcontractor on the -program or effort, or with any direct competitor of such prime contractor or any such -first-tier subcontractor in furnishing end items or services of the type developed or -produced on the program or effort; and -(2) Receives access to technical data or computer software for performance of a -Government contract that contains the clause at 252.227-7994, Limitations on the Use -or Disclosure of Government-Furnished Information Marked with Restrictive Legends. -“Detailed manufacturing or process data” means technical data that describe the steps, -sequences, and conditions of manufacturing, processing or assembly used by the -manufacturer to produce an item or component or to perform a process. -“Developed” means— -(1) (Applicable to technical data other than computer software documentation.) -An item, component, or process exists and is workable. Thus, the item or component -must have been constructed or the process practiced. Workability is generally -established when the item, component, or process has been analyzed or tested -sufficiently to demonstrate to reasonable people skilled in the applicable art that there -is a high probability that it will operate as intended. Whether, how much, and what -type of analysis or testing is required to establish workability depends on the nature of -the item, component, or process, and the state of the art. To be considered “developed,” -the item, component, or process need not be at the stage where it could be offered for -sale or sold on the commercial market, nor must the item, component, or process be -actually reduced to practice within the meaning of Title 35 of the United States Code; -(2) A computer program has been successfully operated in a computer and -tested to the extent sufficient to demonstrate to reasonable persons skilled in the art -that the program can reasonably be expected to perform its intended purpose; -(3) Computer software, other than computer programs, has been tested or -analyzed to the extent sufficient to demonstrate to reasonable persons skilled in the art -that the software can reasonably be expected to perform its intended purpose; or -(4) Computer software documentation the contractor must deliver under a -contract has been written, in any medium, in sufficient detail to comply with -requirements under that contract. -“Developed exclusively at private expense” means development was accomplished -entirely with costs charged to indirect cost pools, costs not allocated to a Government -contract, or any combination thereof. -(1) Private expense determinations should be made at the lowest practicable -level. -(2) Under fixed-price contracts, when total costs are greater than the firm-fixedprice or ceiling price of the contract, the additional development costs necessary to -complete development shall not be considered when determining whether development -was at Government, private, or mixed expense. -Page 41 of 104 -Attachment A1 -“Developed exclusively with Government funds” means development was not -accomplished exclusively or partially at private expense. -“Developed with mixed funding” means development was accomplished partially with -costs charged to indirect cost pools and/or costs not allocated to a government contract, -and partially with costs charged directly to a government contract. -“Form, fit, and function data” means technical data that describe the required overall -physical, functional, and performance characteristics (along with the qualification -requirements, if applicable) of an item, component, or process to the extent necessary to -permit identification of physically and functionally interchangeable items. -“Generated” means, with regard to technical data or computer software, first created in -the performance of this contract. -“Government purpose” means any activity in which the United States Government is a -party, including cooperative agreements with international or multi-national defense -organizations, or sales or transfers by the United States Government to foreign -governments or international organizations. Government purposes include competitive -procurement, but do not include the rights to use, modify, reproduce, release, perform, -display, or disclose technical data, computer software, or computer software -documentation for commercial purposes or authorize others to do so. -“Government purpose rights” means the rights to— -(1) Use, modify, reproduce, release, perform, display, or disclose technical data, -computer software, or computer software documentation within the Government -without restriction; and -(2) Release or disclose technical data, computer software, or computer software -documentation outside the Government and authorize persons to whom release or -disclosure has been made to use, modify, reproduce, release, perform, display, or -disclose that data or software for United States Government purposes. -“Limited rights” means the rights to use, modify, reproduce, release, perform, display, -or disclose technical data, in whole or in part, within the Government. The Government -may not, without the written permission of the party asserting limited rights, release or -disclose the technical data outside the Government, use the technical data for -manufacture, or authorize the technical data to be used by another party, except that -the Government may reproduce, release, or disclose such data or authorize the use or -reproduction of the data by persons outside the Government if— -(1) The reproduction, release, disclosure, or use is— -(i) Necessary for emergency repair and overhaul; or -(ii) A release or disclosure to— -(A) A covered Government support contractor in performance of its -covered Government support contract for use, modification, reproduction, performance, -Page 42 of 104 -Attachment A1 -display, or release or disclosure to a person authorized to receive limited rights technical -data; or -(B) A foreign government, of technical data other than detailed -manufacturing or process data, when use of such data by the foreign government is in -the interest of the Government and is required for evaluational or informational -purposes; -(2) The recipient of the technical data is subject to a prohibition on the further -reproduction, release, disclosure, or use of the technical data; and -(3) The contractor or subcontractor asserting the restriction is notified of such -reproduction, release, disclosure, or use. -“Minor modification” means a modification that does not significantly alter the -nongovernmental function or purpose of the software or is of the type customarily -provided in the commercial marketplace. -“Other than commercial computer software” means software that does not qualify as -commercial computer software under the definition of “commercial computer software” -of this clause. -“Restricted rights” apply only to other than commercial computer software and mean -the Government’s rights to— -(1) Use a computer program with one computer at one time. The program may not -be accessed by more than one terminal or central processing unit or time shared unless -otherwise permitted by this contract; -(2) Transfer a computer program to another Government agency without the -further permission of the Contractor if the transferor destroys all copies of the program -and related computer software documentation in its possession and notifies the licensor -of the transfer. Transferred programs remain subject to the provisions of this clause; -(3) Make a reasonable number of copies of the computer software required for the -purposes of safekeeping (archive), backup, modification, or other activities authorized in -paragraphs (1), (2), (4) and (5) of this definition; -(4) Modify computer software provided that the Government may— -(i) Use the modified software only as provided in paragraphs (1) and (3) of this -definition; and -(ii) Not release or disclose the modified software except as provided in -paragraphs (2) and (5) of this clause; -(5) Use, modify, reproduce, perform, display, or release or disclose the computer -software, and permit contractors, subcontractors, or covered Government support -contractors to do so, for purposes set forth in subparagraph (i) of this paragraph, subject -to the conditions set forth in subparagraphs (ii) of this paragraph: -Page 43 of 104 -Attachment A1 -(i)(A) In performance of service contracts (see FAR 37.101), to diagnose and -correct deficiencies, to modify the software to enable a computer program to be -combined with, adapted to, or merged with other computer programs, or when -necessary to respond to urgent tactical situations, provided that the Government -notifies the party which has granted restricted rights that any such release or -disclosure to particular contractors or subcontractors was made; -(B) To perform emergency repairs or overhaul of items or components -procured under this or a related contract, when necessary to perform such repairs or -overhaul; or -(C) For the management and oversight of a program or effort by a person -authorized to receive restricted rights computer software, including in the performance -of covered Government support contracts. -(ii)(A) Any contractor, subcontractor, or covered Government support contractor -receiving access to the software for the purposes of subparagraphs (i), (ii), or (iii) of this -paragraph shall be subject to the use and nondisclosure agreement at 227.7103-7 or be -performing a Government contract that contains the clause at 252.227-7994, -Limitations on the Use or Disclosure of Government-Furnished Information Marked -with Restrictive Legends; -(B) The Government must not permit any recipient of the software under -this paragraph to decompile, disassemble, or reverse engineer the software, or use -software decompiled, disassembled, or reverse engineered by the Government pursuant -to paragraph (4) of this definition, for any other purpose; and -(C) Any use, modification, reproduction, performance, display, release, or -disclosure of the computer software under this paragraph remains subject to the -limitations in paragraphs (1) through (4) of this definition. -“Small Business Innovation Research/Small Business Technology Transfer -(SBIR/STTR) data” means all technical data or computer software developed or -generated in the performance of a phase I, II, or III SBIR/STTR contract or subcontract. -“Technical data” means recorded information, regardless of the form or method of the -recording, of a scientific or technical nature (including computer software -documentation). The term does not include computer software or financial, -administrative, cost or pricing, or management information, or information incidental to -contract administration. -“Unlimited rights” means rights to use, modify, reproduce, perform, display, release, or -disclose technical data, computer software, or computer software documentation in -whole or in part, in any manner, and for any purpose whatsoever, and to have or -authorize others to do so. -(b) Applicability. (1) Except as provided in paragraph (b)(2) of this clause— -(i) This clause governs all technical data related to other than commercial -products or commercial services or to any portion of a commercial product or -commercial service that was developed in any part at Government expense; -Page 44 of 104 -Attachment A1 -(ii) This clause governs all other than commercial computer software or -other than commercial computer software documentation; and -(iii) The clause at DFARS 252.227-7990, Technical Data—Commercial -Products and Commercial Services, governs the technical data related to any portion of -a commercial product or commercial service that was developed exclusively at private -expense. -(2) The clause at DFARS 252.227-7993, Rights in Other Than Commercial -Technical Data and Computer Software—Small Business Innovation Research Program -and Small Business Technology Transfer Program, governs technical data that are -SBIR/STTR data. -(c) Rights in technical data and computer software. The Contractor grants or shall -obtain for the Government the following royalty free, worldwide, nonexclusive, -irrevocable license rights: -(1) Unlimited rights. The Government shall have unlimited rights in technical -data, computer software, or computer software documentation that are— -(i) Data related to an item, component, or process which has been or will be -developed exclusively with Government funds; -(ii) Studies, analyses, test data, or similar data produced for this contract, -when the study, analysis, test, or similar work was specified as an element of -performance; -(iii) Technical data created exclusively with Government funds in the -performance of a contract that does not require the development, manufacture, -construction, or production of items, components, or processes; -(iv) Form, fit, and function data; -(v) Technical data necessary for installation, operation, maintenance, or -training purposes (other than detailed manufacturing or process data); -(vi) Government-furnished corrections or changes to— -(A) Technical data furnished to the Contractor by the Government; or -(B) Computer software or computer software documentation; -(vii) Data, computer software, or computer software documentation that is -publicly available or previously released or disclosed by the Contractor or subcontractor -without restrictions on further use, release or disclosure, other than a release or -disclosure resulting from the sale, transfer, or other assignment of interest in the -technical data to another party or the sale or transfer of some or all of a business entity -or its assets to another party; -Page 45 of 104 -Attachment A1 -(viii) Data, computer software, or computer software documentation in -which the Government has obtained unlimited rights under another Government -contract or as a result of negotiations; -(ix) Data furnished to the Government, under this or any other Government -contract or subcontract, with— -(A) Government purpose license rights or limited rights and the -restrictive condition(s) has/have expired; or -(B) Government purpose rights and the Contractor’s exclusive right to -use such data for commercial purposes has expired; or -(x) Computer software developed exclusively with Government funds; -(xi) Computer software documentation the contractor must deliver under -this contract; or -(xvii) Computer software or computer software documentation furnished to -the Government, under this or any other Government contract or subcontract with— -(A) Restricted rights in computer software, limited rights in technical -data, or government purpose license rights and the restrictive conditions have expired; -or -(B) Government purpose rights and the Contractor’s exclusive right to -use such software or documentation for commercial purposes has expired. -(2) Government purpose rights. (i) The Government shall have government -purpose rights for a 5-year period, or such other period as may be negotiated, in -technical data or computer software— -(A) Related to items, components, or processes developed with mixed -funding except when the Government is entitled to unlimited rights in such data or -software as provided in paragraphs (c)(1)(ii), (c)(1)(iv) through (c)(1)(ix), and (c)(1)(xii) -through (c)(1)(x)(v)(i) of this clause; or -(B) Created with mixed funding in the performance of a contract that -does not require the development, manufacture, construction, or production of items, -components, or processes. -(ii) The 5-year period, or such other period as may have been negotiated, -shall begin upon execution of the contract, subcontract, letter contract (or similar -contractual instrument), contract modification, or option exercise that required -development of the items, components, or processes, development of the computer -software, or creation of the data described in paragraph (c)(2)(i)(B) of this clause. Upon -expiration of the 5-year or other negotiated period, the Government shall have -unlimited rights in the technical data or computer software. -Page 46 of 104 -Attachment A1 -(iii) The Government will not release or disclose technical data or computer -software in which it has government purpose rights unless— -(A) Prior to release or disclosure, the intended recipient completes the -nondisclosure agreement at DFARS 227.7103-7; or -(B) The recipient is a Government contractor receiving access to the -data or software for performance of a Government contract that contains the clause at -DFARS 252.227-7994, Limitations on the Use or Disclosure of Government-Furnished -Information Marked with Restrictive Legends. -(iv) The Contractor has the exclusive right, including the right to license -others, to use technical data or computer software in which the Government has -obtained government purpose rights under this contract for any commercial purpose -during the time period specified in the government purpose rights legend prescribed in -paragraph (g)(3) of this clause. -(3) Limited rights. (i) Except as provided in paragraphs (c)(1)(ii) and (c)(1)(iv) -through (c)(1)(ix) of this clause, the Government shall have limited rights in technical -data— -(A) Related to items, components, or processes developed exclusively at -private expense and marked with the limited rights legend prescribed in paragraph (g) -of this clause; or -(B) Created exclusively at private expense in the performance of a -contract that does not require the development, manufacture, construction, or -production of items, components, or processes. -(ii) The Government will require a recipient of limited rights data for -emergency repair or overhaul to destroy the data and all copies in its possession -promptly following completion of the emergency repair/overhaul and to notify the -Contractor that the data have been destroyed. -(iii) The Contractor, its subcontractors, and suppliers are not required to -provide the Government additional rights to use, modify, reproduce, release, perform, -display, or disclose technical data furnished to the Government with limited rights. -However, if the Government desires to obtain additional rights in technical data in -which it has limited rights, the Contractor agrees to promptly enter into negotiations -with the Contracting Officer to determine whether there are acceptable terms for -transferring such rights. The Contractor shall ensure that any resulting license -agreement, made part of the contract, lists or describes all technical data for which the -Government has been granted additional rights and specifies those additional rights. -(iv) The Contractor acknowledges that— -(A) The Government is authorized to release or disclose limited rights -data to covered Government support contractors; -(B) The Government will notify the contractor of such release or -disclosure; -Page 47 of 104 -Attachment A1 -(C) The Contractor or the party asserting restrictions in the limited -rights legend may— -(1) Require each covered Government support contractor to enter -into a nondisclosure agreement directly with the Contractor or the party asserting -restrictions regarding use of the data; or -(2) Waive in writing the requirement for a nondisclosure -agreement; and -(D) Any such nondisclosure agreement shall address the restrictions on -the covered Government support contractor’s use of the limited rights data as set forth -in the clause at DFARS 252.227-7994, Limitations on the Use or Disclosure of -Government-Furnished Information Marked with Restrictive Legends. The -nondisclosure agreement shall not include any additional terms and conditions unless -mutually agreed to by the parties to the nondisclosure agreement. -(4) Restricted rights. (i) The Government shall have restricted rights in other -than commercial computer software the contractor must deliver, or that is otherwise -provided, to the Government under this contract that was developed exclusively at -private expense. -(ii) The Contractor, its subcontractors, or suppliers are not required to -provide the Government additional rights in other than commercial computer software -delivered or otherwise provided to the Government with restricted rights. However, if -the Government desires to obtain additional rights in such software, the Contractor -agrees to promptly enter into negotiations with the Contracting Officer to determine -whether there are acceptable terms for transferring such rights. The Contractor shall -ensure that any resulting license agreement, made part of the contract, lists or -describes all other than commercial computer software for which the Government has -been granted additional rights and specifies those additional rights. -(iii) The Contractor acknowledges that— -(A) The Government is authorized to release or disclose restricted -rights computer software to covered Government support contractors; -(B) The Government will notify the Contractor of such release or -disclosure; -(C) The Contractor or the party asserting restrictions in the restricted -rights legend may— -(1) Require each such covered Government support contractor to -enter into a nondisclosure agreement directly with the Contractor or the party asserting -restrictions regarding the use of the software; or -(2) Waive in writing the requirement for a nondisclosure -agreement; and -Page 48 of 104 -Attachment A1 -(D) Any such nondisclosure agreement shall address the restrictions on -the covered Government support contractor’s use of the restricted rights software as set -forth in the clause at DFARS 252.227-7994, Limitations on the Use or Disclosure of -Government-Furnished Information Marked with Restrictive Legends. The -nondisclosure agreement shall not include any additional terms and conditions unless -mutually agreed to by the parties to the nondisclosure agreement. -(5) Specifically negotiated license rights. The standard license rights granted to -the Government under paragraphs (c)(1) through (c)(4) of this clause, including the -period during which the Government shall have government purpose rights in technical -data or computer software, may be modified by mutual agreement but shall not provide -the Government lesser rights than provided in the definition of “limited rights” or -restricted rights” of this clause. Any negotiated rights shall be identified in a license -agreement made part of this contract. -(6) Prior government rights. Technical data or computer software that will be -delivered, furnished, or otherwise provided to the Government under this contract, in -which the Government has previously obtained rights shall be delivered, furnished, or -provided with the preexisting rights, unless— -(i) The parties have agreed otherwise; or -(ii) The restrictions on the Government’s rights to use, modify, reproduce, -release, perform, display, or disclose the data or software have expired or no longer -apply. -(7) Release from liability. The Contractor agrees to release the Government -from liability for any authorized release or disclosure of technical data or computer -software made in accordance with this clause or any negotiated license agreement. This -release from liability for the Government also applies to releases or disclosures made by -a third party who received the data or software from an authorized recipient. For any -unauthorized use or disclosure by such third parties of technical data or computer -software marked with restrictive legends, the Contractor agrees to seek relief solely -from that party. -(d) Contractor rights in technical data and computer software. The Contractor -retains all rights not granted to the Government. -(e) Third party copyrighted data and software. The Contractor shall not, without -the written approval of the Contracting Officer, incorporate any copyrighted data or -software in the technical data or computer software the contractor must deliver under -this contract unless the Contractor is the copyright owner or has obtained license rights -for the Government of the appropriate scope set forth in paragraph (c) of this clause, -and has affixed a statement of the license or licenses obtained on behalf of the -Government and other persons to the data transmittal document. -(f) Identification and delivery of data to be delivered with restrictions on use, release, -or disclosure. (1) This paragraph does not apply to restrictions based solely on -copyright. -Page 49 of 104 -Attachment A1 -(2) Except as provided in paragraph (f)(3) of this clause, technical data or -computer software that the Contractor asserts should be furnished to the Government -with restrictions on use, release, or disclosure are identified in an attachment to this -contract (the Attachment). The Contractor shall not deliver any data or software with -restrictive markings unless the data are listed on the Attachment. -(3) In addition to the assertions made in the Attachment, the Contractor may -identify other assertions after award when based on new information or inadvertent -omissions unless the inadvertent omissions would have materially affected the source -selection decision. The Contractor shall submit such identification and assertions to the -Contracting Officer as soon as practicable prior to the scheduled date for delivery of the -data or software, in the following format, and signed by an official authorized to -contractually obligate the Contractor: -Identification and Assertion of Restrictions on the Government’s Use, -Release, or Disclosure of Technical Data or Computer Software -The Contractor asserts for itself, or the persons identified below, that the Government’s -rights to use, release, or disclose the following technical data or computer software -should be restricted— -Technical data or -Asserted Name of person -computer software to be Basis for -rights asserting -delivered with restrictions assertion 2 -category 3 restrictions 4 -1 -(LIST) (LIST) (LIST) (LIST) -1 If the assertion is applicable to items, components or processes developed at -private expense, identify both the data and each such item, component, or process. -2 Generally, the development of an item, component, process, or computer software -at private expense, either exclusively or partially, is the only basis for asserting -restrictions on the Government’s rights to use, release, or disclose computer -software or technical data related to such items, components, or processes. -Indicate whether development was exclusively or partially at private expense. If -development was not at private expense, enter the specific reason for asserting -that the Government’s rights should be restricted. -3 Enter asserted rights category (e.g., rights in SBIR/STTR data generated under -another contract, limited rights, restricted rights, or government purpose rights -under this or a prior contract, or specifically negotiated licenses). -Page 50 of 104 -Attachment A1 -Technical data or -Asserted Name of person -computer software to be Basis for -rights asserting -delivered with restrictions assertion 2 -category 3 restrictions 4 -1 -4 Corporation, individual, or other person, as appropriate. -Date -Printed Name and Title -Signature -(End of identification and assertion) -(4) When requested by the Contracting Officer, the Contractor shall provide -sufficient information to enable the Contracting Officer to evaluate the Contractor’s -assertions. The Contracting Officer reserves the right to add the Contractor’s assertions -to the Attachment and validate any listed assertion, at a later date, in accordance with -the procedures in the DFARS 252.227-7997, Validation of Asserted Restrictions, clause -of this contract. -(g) Marking requirements. The Contractor, and its subcontractors or suppliers, may -only assert restrictions on the Government’s rights to use, modify, reproduce, release, -perform, display, or disclose technical data or computer software the Contractor must -deliver under this contract by marking the deliverable data or software subject to -restriction. Except as provided in paragraph (g)(7) of this clause, only the following -legends are authorized under this contract: the government purpose rights legend at -paragraph (g)(3) of this clause; the limited rights legend at paragraph (g)(4) of this -clause; the restricted rights legend at paragraph (g)(5) of this clause; the special license -rights legend at paragraph (g)(6) of this clause; and a notice of copyright as prescribed -under 17 U.S.C. 401 or 402. -(1) General marking instructions. The Contractor, or its subcontractors or -suppliers, shall conspicuously and legibly mark the appropriate legend on all technical -data or computer software that qualify for such markings. The authorized legends shall -be placed on the transmittal document or storage container and, for printed material, -each page of the printed material containing technical data or computer software for -which restrictions are asserted. When only portions of a page of printed material are -subject to the asserted restrictions, such portions shall be identified by circling, -underscoring, with a note, or other appropriate identifier. Technical data or computer -software transmitted directly from one computer or computer terminal to another shall -contain a notice of asserted restrictions. For software that will or might be used in -combat or situations that simulate combat conditions, the contractor shall not insert -instructions that interfere with or delay the operation of computer software in order to -display a restrictive rights legend or other license statement at any time prior to or -during use of the computer software, or otherwise cause such interference or delay, -unless the Contracting Officer’s written permission to deliver such software has been -obtained prior to delivery. Reproductions of technical data or computer software or any -Page 51 of 104 -Attachment A1 -portions thereof subject to asserted restrictions shall also reproduce the asserted -restrictions. -(2) Omitted markings. (i) Technical data or computer software delivered or -otherwise provided under this contract without restrictive markings will be presumed -to have been delivered with unlimited rights. To the extent practicable, if the -Contractor has requested permission (see paragraph (g)(2)(ii) of this clause) to correct -an inadvertent omission of markings, the Contracting Officer will not release or disclose -the technical data or computer software pending evaluation of the request. -(ii) The Contractor may request permission to have conforming and justified -restrictive markings placed on unmarked technical data or computer software at its -expense. The request must be received by the Contracting Officer within 6 months -following the furnishing or delivery of such technical data or computer software, or any -extension of that time approved by the Contracting Officer. The Contractor shall— -(A) Identify the technical data or computer software that should have -been marked; -(B) Demonstrate that the omission of the marking was inadvertent, the -proposed marking is justified and conforms with the requirements for the marking of -technical data or computer software contained in this clause; and -(C) Acknowledge, in writing, that the Government has no liability with -respect to any disclosure, reproduction, or use of the technical data or computer -software made prior to the addition of the marking or resulting from the omission of the -marking. -(3) Government purpose rights markings. Technical data or computer software -delivered or otherwise furnished to the Government with government purpose rights -shall be marked as follows: -GOVERNMENT PURPOSE RIGHTS -Contract Number -Contractor Name -Contractor Address -Expiration Date -The Government’s rights to use, modify, reproduce, release, perform, display, or disclose -these technical data or computer software are restricted by the government purpose -rights license in the DFARS 252.227-7989, Rights in Technical Data, Computer -Software, and Computer Software Documentation—Other Than Commercial Products -and Commercial Services, clause contained in the above identified contract. No -restrictions apply after the expiration date shown above. Any reproduction of technical -data or portions thereof marked with this legend must also reproduce the markings. -(End of legend) -Page 52 of 104 -Attachment A1 -(4) Limited rights markings. Data delivered or otherwise furnished to the -Government with limited rights shall be marked as follows: -LIMITED RIGHTS -Contract Number -Contractor Name -Contractor Address -The Government’s rights to use, modify, reproduce, release, perform, display, or disclose -these technical data are restricted by the limited rights license in the DFARS 252.2277989, Rights in Technical Data, Computer Software, and Computer Software -Documentation—Other Than Commercial Products and Commercial Services, clause -contained in the above identified contract. Any reproduction of technical data or -portions thereof marked with this legend must also reproduce the markings. Any -person, other than the Government, who has been provided access to such data must -promptly notify the above named Contractor. -(End of legend) -(5) Restricted rights markings. Software delivered or otherwise furnished to the -Government with restricted rights shall be marked as follows: -RESTRICTED RIGHTS -Contract Number -Contractor Name -Contractor Address -The Government’s rights to use, modify, reproduce, release, perform, display, or disclose -this software are restricted by the restricted rights license in the DFARS 252.227-7014, -Rights in Other Than Commercial Computer Software and Other Than Commercial -Computer Software Documentation, clause contained in the above identified contract. -Any reproduction of computer software or portions thereof marked with this legend -must also reproduce the markings. Any person, other than the Government, who has -been provided access to such software must promptly notify the above named -Contractor. -(End of legend) -(6) Special license rights markings. (i) Technical data or computer software in -which the Government’s rights stem from a specifically negotiated license shall be -marked as follows: -SPECIAL LICENSE RIGHTS -The Government’s rights to use, modify, reproduce, release, perform, display, or disclose -these data or software are restricted by Contract Number [Insert contract number], -Page 53 of 104 -Attachment A1 -License Number [Insert license identifier]. Any reproduction of technical data, computer -software, or portions thereof marked with this legend must also reproduce the -markings. -(End of legend) -(ii) For purposes of this clause, special licenses do not include government -purpose license rights acquired under a prior contract (see paragraph (c)(5) of this -clause). -(7) Preexisting data or software markings. If the terms of a prior contract or -license permitted the Contractor to restrict the Government’s rights to use, modify, -reproduce, release, perform, display, or disclose technical data or computer software -deliverable under this contract, and those restrictions are still applicable, the -Contractor may mark such data or software with the appropriate restrictive legend for -which the data or software qualified under the prior contract or license. The Contractor -shall follow the marking procedures in paragraph (g)(1) of this clause. -(h) Contractor procedures and records. Throughout performance of this contract, -the Contractor and its subcontractors or suppliers that will deliver technical data or -computer software with other than unlimited rights, shall— -(1) Have, maintain, and follow written procedures sufficient to assure that -restrictive markings are used only when authorized by the terms of this clause; and -(2) Maintain records sufficient to justify the validity of any restrictive markings -on technical data or computer software delivered under this contract. -(i) Removal of unjustified and nonconforming markings—(1) Unjustified technical -data markings. The rights and obligations of the parties regarding the validation of -restrictive markings on technical data or computer software delivered or to be delivered -under this contract are contained in the DFARS 252.227-7997, Validation of Asserted -Restrictions, clause of this contract. Notwithstanding any provision of this contract -concerning inspection and acceptance, the Government may ignore or, at the -Contractor’s expense, correct or strike a marking if, in accordance with the procedures -in the Validation of Asserted Restrictions clause of this contract, a restrictive marking is -determined to be unjustified. -(2) Nonconforming technical data or computer software markings. A -nonconforming marking is a marking placed on technical data or computer software -delivered or otherwise furnished to the Government under this contract that is not in -the format authorized by this contract. Correction of nonconforming markings is not -subject to the DFARS 252.227-7997, Validation of Asserted Restrictions, clause of this -contract. If the Contracting Officer notifies the Contractor of a nonconforming marking -and the Contractor fails to remove or correct such marking within 60 days, the -Government may ignore or, at the Contractor’s expense, remove or correct any -nonconforming marking. -(j) 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. -Page 54 of 104 -Attachment A1 -(k) Limitation on charges for rights in technical data, computer software, or -computer software documentation. (1) The Contractor shall not charge to this contract -any cost, including, but not limited to, license fees, royalties, or similar charges, for -rights in technical data, computer software, or computer software documentation the -Contractor must deliver under this contract when— -(i) The Government has acquired, by any means, the same or greater rights -in the data or software; or -(ii) The data or software are available to the public without restrictions. -(2) The limitation in paragraph (k)(1) of this clause— -(i) Includes costs charged by a subcontractor or supplier, at any tier, or costs -incurred by the Contractor to acquire rights in subcontractor or supplier technical data, -computer software, or computer software documentation, if the subcontractor or -supplier has been paid for such rights under any other Government contract or under a -license conveying the rights to the Government; and -(ii) Does not include the reasonable costs of reproducing, handling, or -mailing the documents or other media in which the technical data, computer software, -or computer software documentation will be delivered. -(l) Applicability to subcontractors or suppliers. (1) The Contractor shall ensure that -the rights afforded its subcontractors and suppliers under 10 U.S.C. 3771-3775, 10 -U.S.C. 3781-3786, and the identification, assertion, and delivery processes of paragraph -(f) of this clause are recognized and protected. -(2)(i) Except as provided in paragraph (l)(2)(ii) of this clause, the Contractor -shall include this clause in any subcontract or contractual instrument under which -technical data or computer software will be obtained from a subcontractor or supplier -for delivery to the Government. This requirement applies to technical data or software -related to other than commercial products or commercial services, or related to -commercial products or commercial services developed in any part with Government -funds. The Contractor shall also require its subcontractors and suppliers to include this -clause, without alteration except to identify the parties, in any contractual instrument -under which technical data or computer software will be obtained from a subcontractor -or supplier for delivery to the Government. This clause will govern the technical data -related to an other than commercial product or service or to any portion of a commercial -product or commercial service that was developed in any part at Government expense, -and the clause at 252.227-7990 will govern the technical data related to any portion of a -commercial item that was developed exclusively at private expense. No other clause -shall be used to expand or reduce the Government’s, the Contractor’s, or a higher-tier -subcontractor’s or supplier’s rights in a subcontractor’s or supplier’s technical data, -computer software, or computer software documentation. -(ii) The Contractor shall use the clause at DFARS 252.227-7993, Rights in -Other Than Commercial Technical Data and Computer Software—Small Business -Innovation Research Program and Small Business Technology Transfer Program, to -Page 55 of 104 -Attachment A1 -govern technical data, computer software, or computer software documentation that is -SBIR/STTR data. -(3) Technical data, computer software, or computer software documentation a -subcontractor or supplier must deliver shall normally be delivered to the next highertier contractor, subcontractor, or supplier. However, when there is a requirement in the -prime contract for data which may be submitted with other than unlimited rights by a -subcontractor or supplier, then said subcontractor or supplier may fulfill its -requirement by submitting such data or software directly to the Government, rather -than through a higher-tier contractor, subcontractor, or supplier. -(4) The Contractor and higher-tier subcontractors or suppliers shall not use the -award of a contract as economic leverage to obtain rights in technical data, computer -software, or computer software documentation from their subcontractors or suppliers. -(5) In no event shall the Contractor use its obligation to recognize and protect -subcontractor or supplier rights in technical data, computer software, or computer -software documentation as an excuse for failing to satisfy its contractual obligations to -the Government. +line item of data (as identified in DD Form 1423, Contract Data Requirements List) +of which the data forms a part; or any longer period specified in the contract. +(c) Contractor notification. The Contractor agrees to notify the Contracting +Officer in writing immediately of any breach of the above warranty which the +Contractor discovers within the warranty period. +(d) Remedies. The following remedies shall apply to all breaches of the +warranty, whether the Contractor notifies the Contracting Officer in accordance +with paragraph (c) of this clause or if the Government notifies the Contractor of the +breach in writing within the warranty period: +(1) Within a reasonable time after such notification, the Contracting Officer +may— +(i) By written notice, direct the Contractor to correct or replace at the +Contractor's expense the nonconforming technical data promptly; or +(ii) If the Contracting Officer determines that the Government no longer +has a requirement for correction or replacement of the data, or that the data can be +more reasonably corrected by the Government, inform the Contractor by written +notice that the Government elects a price or fee adjustment instead of correction or +replacement. +(2) If the Contractor refuses or fails to comply with a direction under +paragraph (d) (1)(i) of this clause, the Contracting Officer may, within a reasonable +time of the refusal or failure— +(i) By contract or otherwise, correct or replace the nonconforming +technical data and charge the cost to the Contractor; or +(ii) Elect a price or fee adjustment instead of correction or replacement. +(3) The remedies in this clause represent the only way to enforce the +Government's rights under this clause. +(e) The provisions of this clause apply anew to that portion of any corrected or +replaced technical data furnished to the Government under paragraph (d)(1)(i) of +this clause. (End of clause)
