Attachment_15_Tech_Data_-_Comp_SW_Rights_Private_Expense.docx

Attachment 15 RFP HTC711-14-R-D006

TECHNICAL DATA/COMPUTER SOFTWARE RIGHTS

(Offers including any previously developed technical data, computer software or computer software documentation which was funded solely at private expense or proposing any Commercial Technical Data/Computer Software License)

1. Instructions

If the Offeror’s approach includes providing technical data or computer software previously developed entirely at private expense, except for the items identified at DFARS 227.7103-5(a)(2) and (a)(4) through (a)(9), DFARS 227.7203-5(a)(3) through (6) and DFARS 227.7102-1, Offerors shall so indicate by completing the Section K provision entitled “Identification and Assertion of Use, Release, or Disclosure Restrictions” (DFARS 252.227-7017) and identify the specific type of noncommercial and commercial technical data/computer software rights the Offeror asserts it will retain and ensure that the statements in both the Section K provision and Attachment 15 are consistent with each other in all respects.

2. Rights in Technical Data, Computer Software and Computer Software Documentation

(a) Table 1 identifies the rights the U.S. Government may acquire to all ICODES V7 non-commercial development, production and sustainment technical data, computer software and computer software documentation previously developed solely at private expense and delivered or applied during performance of this contract. Table 2 identifies the rights the U.S. Government may acquire to all commercial technical data, computer software and computer software documentation delivered to the Government under this contract.

(1) The contractor agrees that the price for any rights procured under CLIN 0007 and described in Table 1 associated with any noncommercial technical data, computer software or computer software documentation includes all direct and indirect costs and profit/fee for the rights to use, modify, perform, display, or disclose that technical data and computer software inside and outside the Government consistent with the rights identified for that data item in Table 1 of this Attachment. The Contractor agrees that the price for any rights associated with the use, release or disclosure of any commercial technical data, computer software, and computer software documentation (inclusive of firmware) delivered under CLIN 0007 includes all direct and indirect costs and profit/fee for the rights to use, modify, perform, display, or disclose that/those computer programs (inclusive of firmware) inside and outside the Government consistent with the licenses identified in Table 2 of this Attachment. Any statements to the contrary in any attachment to this contract are hereby null and void.

(2) If any of the technical data or computer software listed below is changed (e.g., updates software maintenance patches, version changes, new releases, substitutions) after the delivery of that technical data or computer software, the Contractor shall deliver the rights to the changed technical data or computer software at no additional cost to the U.S. Government.

(3) Any license associated with any technical data, computer software, or computer software documentation delivered under CLIN 0007 shall transfer upon delivery of that technical data, computer software, or computer software documentation.

(4) Complete Table 1 in the following manner:

a. In column 1, insert the Data Item Title for the technical data, computer software or computer software documentation previously developed entirely at private expense.

b. In column 2, insert the Data Item Function for the technical data, computer software or computer software documentation previously developed entirely at private expense.

c. In column 3, insert “Unlimited Rights” or “Government Purpose Rights”. (NOTE: The Government is entitled to Unlimited Rights in technical data and computer software associated with certain items delivered under this contract in certain situations, even where those items were not developed exclusively with Government funding (see DFARS 252.227- 7013(b)(1)(ii, iv-ix) and DFARS 252.227-7014(b)(1)(ii-vi)).

d. In column 4, insert the price for the rights in the technical data, computer software or computer software documentation previously developed entirely at private expense.

e. Total the prices in column 4 and include that total in CLIN 0007. Note: If Table 2 is completed, add the total price from Table 1, column 4 to the total price from Table 2, column 5 and include that total in CLIN 0007.

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

TOTAL – Total the prices in Column 4 and include that total in Offeror’s price for CLIN 0007

(b) Table 2 lists the commercial technical data, commercial computer software and commercial computer software documentation licenses the Government will acquire to all such technical data and computer software.

(1) The government will acquire *_____ to that technical data and software for ICODES V7 program purposes. Those licenses are physically attached thereto. Any inconsistency between the content of those licenses and the requirement that the Contractor furnish a perpetual license to that technical data and computer software to the Government for ICODES V7 program purposes shall be resolved by giving precedence to the requirement that the Contractor furnish a perpetual license to that technical data and computer software to the Government for ICODES V7 program purposes.

(2) Complete Table 2 in the following manner:

a. In column 1, identify the Data Item Title for the commercial technical data, commercial computer software and commercial computer software documentation licenses the Government will acquire.

b. In column 2, identify the Data Item Function for the commercial technical data, commercial computer software and commercial computer software documentation licenses the Government will acquire.

c. In column 3, identify the number of licenses the Government will acquire.

d. In column 4, identify the price per license.

e. In column 5, identify the Total Price for the license(s).

f. Total the prices in column 5 and include that total in CLIN 0007. Note: If Table 1is completed, add the total price from Table 1, column 4 to the total price from Table 2, column 5 and include that total in CLIN 0007.

g. Physically attach a copy of every license listed in column 3 of the table.

Table 2: Commercial Technical Data/Computer Software License List

TOTAL – Total the prices in Column 5 and include that total in Offeror’s price for CLIN 0007

(3) In addition to the licenses in commercial item technical data, commercial computer software and commercial computer software documentation appended to this attachment that are listed in Table 2, the Government shall have the right to use, modify, perform, display or disclose that commercial item technical data and the right to use, modify, reproduce, release, perform, display or disclose that commercial computer software and computer software documentation, in whole or in part, within the Government. 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, 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 covered Government Support Contractors as defined in DFARS 252.227-7015(a)(2) and to prospective offerors for competition of future ICODES V7 requirements provided such companies have executed use and non-disclosure agreements as provided by DFARS 227.7103-7 and also, where the company is a competitor or potential competitor of the Contractor, an Organizational Conflict of Interest Mitigation Plan has been approved by the Government.

(c) Marking requirements. The cover page of any CDRL that contains noncommercial technical data, computer software or computer software documentation delivered to the Government with Government Purpose Rights shall contain the Government Purpose Rights restricted marking prescribed by DFARS 252.227-7013(f)(2) and 252.227-7014(f)(2). If commercial technical data or computer software will be delivered as part of a CDRL, the Contractor shall also physically attach a copy of the applicable commercial license(s) listed in Table 2 to the CDRL prior to it being delivered to the Government, and expressly highlight in yellow 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).

(d) Subcontractor flowdown. The Contractor shall include the following clause in any agreement between it and its subcontractors “Licensors” that require the delivery of commercial item technical data, computer software or computer software documentation, and this clause shall be in effect for the life of the license as specified in paragraph (b).

This Addendum is entered into between ___________ Licensee and __________ Licensor and relates to the commercial item technical data, computer software of computer software documentation (“Items”) licensed to the Licensee by the Licensor through the Licensee’s License Agreement (“Agreement”), and this Addendum is incorporated by reference into the Agreement. The Addendum terms will come into effect if and when the Agreement is transferred to the Government. All references to such Items shall include all software updates (e.g., software maintenance patches, version changes, new releases) and future substitutions made by the Licensor. Upon delivery of that/those Items, Licensor and Licensee agree that the following provisions in this Addendum shall take precedence over conflicting provisions, if any, in the Agreement notwithstanding any provisions in the Agreement to the contrary:

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

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) The Items provided hereunder may be installed and used at any U.S. Government installation worldwide consistent with the provisions of the contract between the U.S. Government and the Licensee (e.g., limitations on number of executing instances of software, number of users, other processing volume limitations).

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

(8) 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).

(9) In the event of inconsistencies between the Agreement and Federal law, Federal law shall apply.

(10) Copies of this license may be disclosed to third parties consistent with the Freedom of Information Act.

(11) The Agreement and this Addendum shall apply through renewals or extensions, as needed, of Contract HTC711-14-R-D006.