Attachment_0056_-_Special_License_Requirements_(18MAR19).DOCX

Attachment 0056 Special License Requirements

W56HZV-18-R-0174

Attachment 0056 Special License Requirements 18 March 2019 Solicitation Number: W56HZV-18-R-0174

Special License Requirements for the Technical Data and Computer Software and Patent Rights for the Background Patents listed in Attachment 0055.

This special license agreement (“Agreement”) is made and entered into as of the date of its incorporation into Contract No. W56HZV , and is by and between and the U.S. Army Contracting Command -Warren (“Government” or “United States Government”) and the Government (each a “Party” and collectively the “Parties”) agree as follows:

(a) Authority This Agreement is entered into pursuant to the authority of Defense Federal Acquisition Regulation Supplement (DFARS) 252.227-7013(b)(4), 252.227- 7014(b)(4), 252.227-7015(c), or 227.7202-3(b). Unless otherwise expressly stated in this Agreement, this Agreement does not alter or supersede the Government’s rights to use, modify, reproduce, release, perform, display, or disclose the technical data including computer software documentation or computer software in whole or in part, as defined in the Defense Federal Acquisition Regulation Supplement (DFARS) at 252.227-7013, 252.227-7014, 252.227-7015, or 227.7202-3. Further, this Agreement does not limit the Government’s rights provided by the DFARS clauses included within this contract which include, but are not limited to DFARS 252.227-7019, 252.227-7037, 252.246-7001 and 252.227-7028. This Agreement does not limit or modify the Government’s rights to data deliverables outside of Attachment 0055.

(b) Definitions. As used in this agreement—

1. “Background Patent” means any U.S. or foreign patent or U.S. or foreign patent application covering an invention or discovery which is not a subject invention (as defined in FAR 52.227-11) and which is owned or controlled by the offeror at any time through the completion of this contract or to which the offeror has an interest through inventorship.

2. “Depot Level Maintenance” means materiel maintenance requiring major overhaul or a complete rebuilding of parts, assemblies, subassemblies, and end items, including the manufacture of parts, modifications, testing, and reclamation as required, using DMWRs and NMWRs processes. Depot Level Maintenance serves to support lower categories of maintenance by providing technical assistance and performing that maintenance beyond their responsibility. Depot Level Maintenance provides stocks of serviceable equipment because it has available more extensive facilities for repair than are available in lower maintenance activities. Depot Level Maintenance includes all aspects of software maintenance.

3. “Developed” means -

(i) With respect to an item, component, or process means that 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.

(ii) With respect to a computer program, computer software, or computer software documentation means that—

(A) 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;

(B) 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

(C) Computer software documentation required to be delivered under a contract has been written, in any medium, in sufficient detail to comply with requirements under that contract.

4. “Government purpose rights” means the rights to—

(i) Use, modify, reproduce, release, perform, display, or disclose technical data, computer software, or computer software documentation within the Government without restriction; and

(ii) Release or disclose technical data or computer software 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 for United States government purposes.

5. “OMIT Data” means all technical data and computer software including firmware necessary for operation, maintenance, installation or training purposes (including detailed manufacturing or process data) pertaining to the NGCV-OMFV system and equipment, associated with its life cycle support.

6. “Spare Parts” means repairable or consumable parts acquired after the initial provisioning process.

7. “Unlimited rights” means rights to use, modify, reproduce, perform, display, release, or disclose technical data or computer software in whole or in part, in any manner, and for any purpose whatsoever, and to have or authorize others to do so.

Other terms used in this Agreement that are defined in the following clauses have the same meaning as set forth in those clauses:

A. DFARS 252.227-7013;

B. DFARS 252.227-7014; and

C. DFARS 252.227-7015.

(c) Contractor’s rights in technical data or computer software or patents All rights not granted to the Government are retained by Contractor.

Section A – Delivery and License Rights to Technical Data and Computer Software Necessary to (1) organically perform or to compete the depot level maintenance; (2) compete spare parts procurement; (3) secure additional sources for the NGCV-OMFV system and equipment; and (4) use submitted technical data or computer software for any other Government programs.

(d) Delivery Requirements.

1. General.

The contractor shall identify and deliver all OMIT Data necessary to (1) organically perform or to compete the depot level maintenance; (2) compete spare parts procurement; (3) secure additional sources for the NGCV-OMFV system and equipment; and (4) use submitted technical data or computer software for any other Government programs for the entire OMFV system and equipment with –

A. No less information or detail than industry standards, nor less than the contractor typically requires, to perform such maintenance activities; and B. Additional information or detail that is necessary for military purposes related to

(1) organically perform or to compete the depot level maintenance;

(2) compete spare parts procurement;

(3) secure additional sources for the NGCV-OMFV system and equipment; and

(4) use submitted technical data or computer software for any other Government programs.

2. Depot Maintenance Technical Data and Computer Software.

Contractor shall identify and deliver all technical data and computer software necessary for the Government to organically perform depot level maintenance for the entire NGCV-OMFV system and equipment, including all systems, subsystems, and components without exception. This includes technical data and computer software necessary for installation and de-installation, and disassembly and reassembly, at the lowest practicable segregable level. Examples of technical data and computer software that are needed to organically perform or to compete the depot level maintenance include, but are not limited to, the following:

A. Depot maintenance and information regarding all systems, subsystems, components and equipment;

B. Interface Control Documents (ICDs); and C. Computer software and computer software documentation necessary to perform depot maintenance.

3. Spare Parts procurement Technical Data and Computer Software.

Contractor shall identify and deliver all technical data and computer software necessary for the Government to compete spare parts procurement for all NGCV-OMFV systems, subsystems, components and equipment.

4. Additional Sources for the NGCV-OMFV System and Equipment Technical Data and Computer Software.

Contractor shall identify and deliver all technical data and computer software necessary for the Government to secure additional sources for all NGCV-OMFV systems, subsystems, components and equipment.

5. Use of Submitted Technical Data and Computer Software for any other Government programs.

Contractor shall identify and deliver all technical data and computer software necessary for the Government to use submitted technical data or computer software for any other Government programs for all NGCV-OMFV systems, subsystems, components and equipment.

(e) Contractor’s Data Rights License Grant to the Government.

1. Government's Data Rights License.

A. Contractor grants to the Government the following rights in all technical data and computer software necessary to (1) organically perform or to compete the depot level maintenance; (2) compete spare parts procurement; (3) secure additional sources for the NGCV-OMFV system and equipment; and (4) use submitted technical data or computer software for any other Government programs:

(i) State the offered additional rights to be granted to the Government above limited or restricted, respectively, for noncommercial technical data and computer software. The Government desires Government Purpose Rights for noncommercial technical data and computer software.

(ii) State the offered additional rights to be granted to the Government above the rights specified in DFARS 252.227-7015(b)(2), all rights specified in (iv) below, and all additional rights contained in any license customarily provided to the public for commercial technical data. In addition, the Government desires the rights specified at DFARS 252.227-7015(b)(1) for all commercial technical data.

(iii) State the offered additional rights to be granted to the Government above the rights specified in (iv) below and all additional rights contained in any license customarily provided to the public for commercial computer software. In addition, the Government desires the rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation within the Government without restriction, and the rights to release or disclose 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 the software or documentation for U.S. Government purposes.

(iv) In addition to the rights specified in (i) and (ii) and (iii), the Government desires the right to release or disclose all such technical data or computer software outside the Government, and to authorize the recipient of such information to use, modify, reproduce, release, perform, display, or disclose the technical data or computer software for the sole purpose of performing or supporting:

(a) Organically perform or to compete the depot level maintenance (including the development of manuals and training systems necessary for depot maintenance activities);

(b) Compete spare parts procurement;

(c) Secure additional sources for the NGCV-OMFV system and equipment; and

(d) Use submitted technical data or computer software for any other Government programs State the offered additional rights to be granted to the Government pertaining to (a) through (d) above.

(v) State the offered additional rights for the Government to manufacture additional quantities of any item for other than commercial purposes.

2. All contractors or other persons receiving technical data or computer software as authorized by (e)(1)(A) above shall be subject to a legal prohibition (e.g., nondisclosure agreement) against using such technical data or computer software for any purpose other than supporting the Government’s ability for the NGCV-OMFV system and equipment to (1) organically perform or to compete the depot level maintenance; (2) compete spare parts procurement; (3) secure additional sources for the NGCV-OMFV system and equipment; and (4) use submitted technical data or computer software for any other Government programs, as appropriate and authorized.

(f) Technical Data and Computer Software of Subcontractors and Suppliers.

The contractor's obligations in this Agreement shall apply to all technical data and computer software, including all technical data or computer software developed, delivered, or otherwise provided by subcontractors or suppliers at any tier, and regardless of whether the computer software or technical data is or relates to commercial items or noncommercial items. The contractor shall include these requirements in its subcontracts or other contractual or legal instruments with its subcontractors or suppliers at any tier.

(g) Validation of Asserted Restrictions and Restrictive Markings.

Nothing in this special contract requirement limits or otherwise affects the parties' rights or obligations specified in the DFARS 252.227-7019 or DFARS 252.227-7037.

(h) Third party copyrighted technical data.

Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted data in the technical data to be delivered under this contract unless Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable data of the appropriate scope set forth in paragraph (e) of this agreement, and has affixed a statement of the license or licenses obtained on behalf of the Government and other persons to the data transmittal document.

(i) Third party copyrighted computer software or computer software documentation. Contractor shall not, without the written approval of the Contracting Officer, incorporate any copyrighted computer software or computer software documentation in the software or documentation to be delivered under this contract unless the Contractor is the copyright owner or has obtained for the Government the license rights necessary to perfect a license or licenses in the deliverable software or documentation of the appropriate scope set forth in paragraph (e) of this agreement, and prior to delivery of such—

(1) Computer software, has provided a statement of the license rights obtained in a form acceptable to the Contracting Officer; or

(2) Computer software documentation, has affixed to the transmittal document a statement of the license rights obtained

(j) 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 to be delivered or otherwise furnished under this contract by marking the deliverable subject to restriction. Only the following legend at paragraph (j)(2) of this Agreement is authorized under this contract and/or 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, computer software, and computer software documentation 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, computer software, or computer software documentation 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, computer software, or computer software documentation transmitted directly from one computer or computer terminal to another shall contain a notice of asserted restrictions. However, 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, shall not be inserted in computer software that will or might be used in combat or situations that simulate combat conditions, unless the Contracting Officer's written permission to deliver such computer software has been obtained prior to delivery. Reproductions of technical data, computer software, or computer software documentation or any portions thereof subject to asserted restrictions shall also reproduce the asserted restrictions.

2. Special license rights markings.

Data in which the Government's rights stem from a specifically negotiated license shall be marked with the following legend:

SPECIAL LICENSE RIGHTS

The Government's rights to use, modify, reproduce, release, perform, display, or disclose these data are restricted by Contract No. W56HZV (Insert contract number) , License No. (Insert license identifier) . Any reproduction of technical data or computer software or portions thereof marked with this legend must also reproduce the markings.

(End of legend)

Section B – Patent License Rights for the Background Patents Listed in Attachment 0055.

(k) Contractor’s Patent Rights License Grant to the Government.

1. State the offered rights to be granted to the Government to background patents and patent applications. The Government desires the rights to practice, or have practiced for or on its behalf, all background patents and patent applications issuing from such applications throughout the world which pertain to the NGCV-OMFV systems and equipment.

(l) License Term.

The license term shall begin on the effective date of this Agreement.

(m) Delivery.

The delivery dates for the deliverables in Attachment 0055 shall be in accordance with the CDRL delivery dates and no later than the end of this contract.

(End of Agreement)

UNCLASSIFIED