16_Atch_08_Data_Rights_(29_Apr_09).docx

ATTACHMENT 8: RIGHTS IN TECHNICAL DATA

GPS Advanced Control Segment (OCX) Rights in Data (Including Technical Data, Computer Software, and Computer Software Documentation) Attachment 8 for

FA8807-09-R-0003

29 April 2009

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ATTACHMENT 8: RIGHTS IN DATA

a. Introduction. The purpose of this Attachment is to identify the rights the U.S. Government will acquire to all OCX development, production and sustainment data, computer software and computer software documentation delivered or otherwise provided to the Government during performance of this contract. Subsection c.(1) identifies the rights the U.S. Government will acquire to all such noncommercial technical data, computer software and computer software documentation. Subsection c.(2) identifies the rights the U.S. Government will acquire to all such commercial item technical data, computer software and computer software documentation. Subsection c.(3) identifies the rights the U.S. Government will acquire to all data that is not technical data or computer software delivered or otherwise provided to the Government during performance of this contract. Subsection c.(4) identifies the rights the U.S. Government will acquire to all data used by the Contractor to create any CDRL or CLIN listed in Tables 1-3 required to be delivered under this contract.

b. Definitions.

“Data” includes technical data, computer software and computer software documentation (as those terms are defined in this subsection), schedule/milestone data, and financial data (including the Contractor’s cost/schedule management system/records and accounting system), irrespective of whether that data is required to be delivered via Exhibit A.

“Commercial item” is defined in FAR § 2.101.

“Computer software” is defined in DFARS § 252.227-7014(a)(4).

“Computer software documentation is defined in DFARS § 252.227-7014(a)(5).

“Firmware” is defined in SMC Standard SMC-S-012.

“Licensee” is defined as the OCX contractor.

“Licensor” is defined as the owner (e.g., subcontractor) of commercial item technical data, computer software, or computer software documentation.

“Technical data” is defined in DFARS § 252.227-7013(a)(14).

c. Types of Rights.

(1) Rights in noncommercial technical data, computer software and computer software documentation. The Government shall have the rights in noncommercial technical data, computer software and computer software documentation described in Table 1 below.

Table 1 Rights in Noncommercial Technical Data, Computer Software, and Computer Software Documentation

A033

Unlimited

Computer Software:

Offeror to Complete

(SSMR)]

Unlimited

Computer Software:

Offeror to Complete

Note 1: The Government will acquire the same level of rights to the contents of all items listed in CDRL A039 as it will to the list itself (i.e., ___*___) .

(2) Rights in commercial technical data, computer software and computer software documentation. In addition to the rights the Government will obtain in commercial item technical data, computer software and computer software documentation listed in Table 2 and contained in Appendix A to this attachment, the Government will acquire the following rights to that technical data and computer software notwithstanding any statements to the contrary in any of the licenses listed in Table 2 that are contained in Appendix A:

(i) The Government shall have the right to use, perform, display or disclose that commercial item technical data and the right to use, reproduce, release, perform, display or disclose that commercial computer software and computer software documentation, in whole or in part, within the Government.

(ii) The Government may not, without the written permission of the Contractor, release or disclose the commercial item technical data and commercial computer software outside the Government, modify, disassemble, decompile, or reverse engineer the commercial item technical data and commercial computer software or authorize other persons to do so, use the commercial item technical data and computer software for manufacture, or authorize the commercial item technical data and computer software to be used by another party, except that the Government may reproduce, release or disclose such data and software or authorize the use or reproduction of such data and software by the following persons outside the Government (including their subcontractors) to perform their respective contract(s) listed below:

The Aerospace Corporation (Contract FA8802-09-C-0001) The Boeing Company (Contract F04701-96-C-0025)(GPS Block IIF) Lockheed Martin Space Systems Company (Contracts F04701-89-C-0073 (GPS Block IIR), F04701FA8807-08-C-0010 (GPS Block IIIA)) MITRE Corporation (Contract FA8721-07-C-0001, Project No. 6642 (Warfighter Support), Task 664C (Global Positioning System) Sandia Corporation (Contract DE-AC-04-94AL85000) Science Applications International Corporation (Contract FA8807-07-C-0002) Tecolote Corporation (Contract FA8802-07-F-1007) United Launch Alliance (e.g., Contracts F04701-93-C-0004 (Delta II Medium Launch Vehicle III), F04701-98-D-0001 (Lockheed Martin Atlas V Commercial Launch Services), F04701-98-D-0002 (Boeing Delta IV Commercial Launch Services), FA8816-06-C-0002 (Lockheed Martin Atlas V EELV Launch Capability), FA8816-06-C-0004 (Lockheed Martin Atlas V EELV Launch Services), FA8816-06-C-0001 (Boeing Delta IV EELV Launch Capability), FA8811-08-C-0005 (Boeing Delta IV EELV Launch Services) User Equipment Segment contractors Any person who will deliver a secondary payload (e.g., DASS) to the Government for integration onto a GPS IIIA/B/C spacecraft.

The Contractor agrees that the Government shall have the right to unilaterally add or delete contractors from those subsections at any time subject to the quantity listed for the applicable item in Column 4 of Table 2, and its exercise of that right shall not entitle the Contractor or its subcontractors to an equitable adjustment or a modification of any other terms and conditions of this contract.

(iii) The duration of all such licenses shall be, at minimum, for the period of performance of this contract (including options, if exercised) unless the license specifies a longer period for a total quantity of seats listed in Column 4 of Table 2 associated with the CDRLs/CLINs listed in Column 1 of that table. The Contractor will be relieved of all responsibilities with respect to such licenses upon contract closeout at which time the Government will assume responsibility for acquiring those licenses under existing or follow-on contracts.

(iv) License rights related to technical data described in, and granted to the U.S. Government under, DFARS § 252.227-7015(b)(1) shall apply to all such technical data associated with delivered computer software including, but not limited to, user’s manuals, installation instructions, and operating instructions.

(v) All such commercial item technical data, computer software and computer software documentation may be installed and used at any U.S. Government installation worldwide at which OCX equipment is located.

(vi) The ultimate purpose of this contract is for the Contractor to deliver to the U.S. Government a critical component of a weapons system whose continued sustainment is mandated by Federal law (10 U.S.C. § 2281, 42 U.S.C. § 14712). Accordingly, should the U.S. Government use, release or disclose the commercial item technical data, computer software, or computer software documentation in a manner inconsistent with the terms of any of the licenses listed in Table 2 contained in Appendix A to this attachment, the U.S. Government shall not be required to deinstall and stop using those Items or return such Items to the Contractor and the Contractor’s remedy shall be limited to monetary damages.

The Contractor shall not delete or replace any commercial item technical data, computer software, or computer software documentation listed in Table 2 from any CLIN or CDRL under which that technical data, computer software or computer software documentation will be delivered to the Government unless the Government has approved that deletion or replacement and the contract has been modified to delete or replace that item from that table and delete or replace the applicable license(s) from Appendix A.

Table 2 Rights in Commercial Technical Data, Computer Software, and Computer Software Documentation

(3) Special License Rights Category A (“SLRC-A”): Rights in data other than technical data, computer software or computer software documentation. The Government shall have the right to use, modify, perform, display or disclose all such data listed in Table 3 below, in whole or in part, within the Government. The Government may not, without the written permission of the Contractor, release or disclose that data outside the Government, use the data for manufacture, or authorize the 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 such data by the following persons outside the Government (including their subcontractors) to perform their respective contract(s) listed below:

The Aerospace Corporation (Contract FA8802-09-C-0001) MITRE Corporation (Contract FA8721-07-C-0001, Project No. 6642 (Warfighter Support), Task 664C (Global Positioning System) Tecolote Corporation (Contract FA8802-07-F-1007) Science Applications International Corporation (Contract FA8807-07-C-0002) Tecolote Research, Inc. (Contract W91WAW-08-D-0031, Delivery Order No. 0003) Technomics (Contract W91WAW-08-C-0090)

The Contractor agrees that the Government shall have the right to unilaterally add or delete contractors (and contracts) from this list at any time, and its exercise of that right shall not entitle the Contractor or its subcontractors to an equitable adjustment or a modification of any other terms and conditions of this contract.

Table 3 Rights in Data Other Than Technical Data, Computer Software or Computer Software Documentation

(SUBTITLE)

ESTIMATED COST

[Life Cycle Cost Report (LCCR)]

(4) Special License Rights Category B (“SLRC-B”): The Government and the persons listed below (including their subcontractors) shall have the right to review all data used by the Contractor to create any CDRL or CLIN listed in Tables 1-3 required to be delivered under this contract (including, if necessary, at the Contractor’s and subcontractors’ facilities) to verify the currency, accuracy and completeness of the data contained in those CDRLs/CLINs:

The Aerospace Corporation MITRE Corporation Tecolote Corporation Science Applications International Corporation

The estimated cost for this license is $____**______. The Contractor agrees that the Government shall have the right to unilaterally add or delete contractors (and contracts) from this list at any time, and its exercise of that right shall not entitle the Contractor or its subcontractors to an equitable adjustment or a modification of any other terms and conditions of this contract.

d. Marking requirements.

(1) If the contents of any CDRL delivered to the Government contain commercial item technical data, computer software or computer software documentation, prior to delivery the Contractor shall physically attach a copy of this Attachment and a copy of the applicable commercial license(s) listed in Table 2 contained in Appendix A for that CDRL to that CDRL, and expressly highlight in red which specific items of commercial technical data located on which specific portions of that CDRL the release of which outside the Government is restricted by that/those license(s). If a CDRL listed in Table 3 will be delivered with Special License Rights Category A described in subsection c.(3) above, the Contractor shall affix to the cover page of that CDRL the legend prescribed by DFARS §§ 252.227-7013(f)(4) and 252.227-7014(f)(4), delete the word “technical” from that legend, and insert the following text immediately after the phrase “License No.” in that legend: “SLRC-A”. If a document described in subsection c.(4) is provided to the Government, the Contractor shall affix to the cover page of that document the legend contained in DFARS §§ 252.227-7013(f)(4) and insert the following text immediately after the phrase “License No.”: “SLRC-B”. Under such circumstances, the Contractor shall also physically attach a copy of this Attachment to that CDRL.

(2) The Contractor acknowledges that, given the types of licenses described herein that apply to (i) specific persons for (ii) specific purposes for (iii) specific items of data (iv) delivered at specific times during performance of this contract, failure to properly affix the proper restricting marking to the appropriate data prior to delivering or otherwise providing that data to the Government exponentially increases the risk that that data will be released to unauthorized persons for unauthorized purposes. Accordingly, in addition to the release from liability contained in DFARS §§ 252.227-7013(b)(6) and 252.227-7014(b)(6), the Contractor agrees to release the Government from liability for any release or disclosure of data other than technical data, computer software, and computer software documentation made in accordance with this Attachment if any CDRL delivered to the Government does not comply in all respects with the marking requirements specified herein.

e. Allocability of Costs to CLINs. With the exception of CDRL A076, the estimated cost of the rights described above in subsection c.(1-3) associated with its corresponding CDRL is built into the estimated cost of CLIN 0700, which in turn is built into the estimated cost of the CLIN under which the development/creation of that CDRL will occur or has occurred. The estimated cost of the rights described above in subsection c.(1-3) associated with CDRL A076 is built into the estimated cost of CLIN 0710. Since the estimated cost for the rights described above in subsection c.(4) benefits all CLINs and all CDRLs to varying degrees, that estimated cost shall be allocated in reasonable proportion to the benefits received by each CLIN.

f. Updates. The estimated cost of any rights in data described above includes the estimated cost of the rights in data to any changes (e.g., updates, software maintenance patches, minor version changes (e.g., from V1.1 to V1.2 not V1.1 to V2.0), substitutions) made to that data by the Contractor anytime during performance of this contract.

g. Content of licenses for computer software delivered under any CLIN other than CLINs 0700 and 0710. All licenses to be furnished by the Contractor associated with any items containing commercial or noncommercial computer software (inclusive of firmware) delivered to the Government shall be identical to those licenses furnished by the Contractor associated with any computer software (inclusive of firmware) delivered by it to the Government in CDRL A033 (“Software Product Specification (SPS)”) (CLIN 0700).

h. License transference. Any license associated with any technical data, computer software, or computer software documentation delivered under any CLIN shall transfer upon delivery of that CDRL or CLIN to the Government.

i. Order of Precedence: Upon delivery of any commercial item technical data, computer software, computer software documentation, or any combination thereof, to the Government contained in any CLIN or CDRL, the following provisions shall take precedence over conflicting provisions in any license associated with those items, notwithstanding any provisions in those licenses to the contrary:

(1) The Government shall have the right to use, perform, display or disclose that commercial item technical data and the right to use, reproduce, release, perform, display or disclose that commercial computer software and computer software documentation, in whole or in part, within the Government.

(2) The Government may not, without the written permission of the Licensor, release or disclose the commercial item technical data and commercial computer software outside the Government, use the commercial item technical data and computer software for manufacture, or authorize the commercial item technical data and computer software to be used by another party, except that the Government may reproduce, release or disclose such data and software or authorize the use or reproduction of such data and software by persons outside the Government (including their subcontractors) to perform their respective contract(s) listed below:

The Aerospace Corporation Contract FA8802-09-C-0001) The Boeing Company (Contract F04701-96-C-0025)(GPS Block IIF) Lockheed Martin Space Systems Company (Contracts F04701-89-C-0073 (GPS Block IIR), FA8807-08-C-0010 (GPS Block IIIA)) MITRE Corporation (Contract FA8721-07-C-0001, Project No. 6642 (Warfighter Support), Task 664C (Global Positioning System) Sandia Corporation (Contract DE-AC-04-94AL85000) Science Applications International Corporation (Contract FA8807-07-C-0002) Tecolote Corporation (Contract FA8802-07-F-1007) United Launch Alliance (e.g., Contracts F04701-93-C-0004 (Delta II Medium Launch Vehicle III), F04701-98-D-0001 (Lockheed Martin Atlas V Commercial Launch Services), F04701-98-D-0002 (Boeing Delta IV Commercial Launch Services), FA8816-06-C-0002 (Lockheed Martin Atlas V EELV Launch Capability), FA8816-06-C-0004 (Lockheed Martin Atlas V EELV Launch Services), FA8816-06-C-0001 (Boeing Delta IV EELV Launch Capability), FA8811-08-C-0005 (Boeing Delta IV EELV Launch Services) User Equipment Segment contractors Any person who will deliver a secondary payload (e.g., DASS) to the Government for integration onto a GPS IIIA/B/C spacecraft

The Licensor agrees that the Government shall have the right to unilaterally add or delete contractors from those clauses at any time subject to the quantity listed for the applicable item in Column 4 of Table 2 of Attachment 8 to Contract FA8807-10-C-____, and its exercise of that right shall not entitle the Licensor to an equitable adjustment or a modification of any other terms and conditions of this contract.

(3) The duration of this license shall be, at minimum, for the period of performance of Contract FA8807-10-C-_____ (including options, if exercised) unless the license specifies a longer period.

(4) License rights related to technical data described in, and granted to the U.S. Government under, DFARS § 252.227-7015(b)(1) shall apply to all such technical data associated with delivered computer software including, but not limited to, user’s manuals, installation instructions, and operating instructions.

(5) Disputes arising between the Licensee and the U.S. Government pertaining to the provisions of the Agreement shall be subject to the Contract Disputes Act. Furthermore, the jurisdiction and forum for disputes hereunder upon delivery to the U.S. Government shall be the Armed Services Board of Contract Appeals (ASBCA) or the U.S. Court of Federal Claims (COFC), as appropriate.

(6) By law, the U.S. Government cannot enter into any indemnification agreement where the Government’s liability is indefinite, indeterminate, unlimited and in violation of the Anti-Deficiency Act; therefore, any such indemnification provision in this Agreement shall be void.

(7) In the event the Licensee files a claim with the U.S. Government on behalf of the Licensor and prevails in a dispute with the Government relating to that claim, the Licensor agrees that damages and remedies awarded shall exclude attorney’s fees.

(8) Upon receiving written consent by the U.S. Government, the Licensor may be permitted to enter Government installations for purposes such as software usage audits or other forms of inspection.

(9) The Items provided hereunder may be installed and used at any U.S. Government installation worldwide at which OCX equipment is located consistent with the provisions of the contract between the U.S. Government and the Licensee.

(10) Under no circumstances shall terms of the License or any modifications thereto renew automatically so as to obligate funds in advance of funds being appropriated in contravention of the Anti-Deficiency Act.

(11) The Licensor shall comply with, and all delivered Items, shall conform to, all applicable Government Security/Classification rules and regulations applicable to this Agreement, in particular those set forth in the applicable DD254 (Department of Defense, Contract Security Classification Specification).

(12) The Licensor understands that the ultimate purpose of the Licensee entering into this Agreement with the Licensor is for the Licensor to supply to the U.S. Government a critical component of a weapons system whose continued sustainment is mandated by Federal law (10 U.S.C. § 2281, 42 U.S.C. § 14712). Accordingly, should the U.S. Government use, release or disclose the Items described in this Agreement in a manner inconsistent with the terms of this Agreement, the U.S. Government shall not be required to deinstall and stop using those Items or return such Items to the Licensee and the Licensor's remedy will be limited to monetary damages..

(13) In the event of inconsistencies between the License and Federal law, Federal law shall apply.

(14) Copies of this license may be disclosed to third parties consistent with the Freedom of Information Act and Clause H010 of Contract FA8807-10-C-_____.

(15) The Agreement and this Addendum shall apply through renewals or extensions, as needed, to Contract FA8807-10-C-_____.

Attachment 8: Rights in Data

FA8807-09-R-0003

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