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Legal text for SACC item
Public Works and Government Services Canada
01 Interpretation
02 Records and Disclosure of Foreground Information
03 Ownership of Intellectual Property Rights in Foreground Information
04 Licenses to Intellectual Property Rights in Foreground and
Background Information
05 Contractor's Right to Grant Licenses
06 Waiver of Moral Rights
07 License to Intellectual Property Rights in Canada's Information
08 Transfer or License of Contractor's Rights
09 Transfer of Intellectual Property Rights Upon Termination of the
Contract for Default
10 Products Created Using the Foreground Information
4006 01 (2008-05-12) Interpretation
1. In the Contract, unless the context otherwise requires:
"Background Information" means all Intellectual Property that is not
Foreground Information that is incorporated into the Work or
necessary for the performance of the Work and that is proprietary to
or the confidential information of the Contractor, its
subcontractors or any other third party;
"Firmware" means computer programs that are stored in integrated
circuits, read-only memory or other similar devices within the
hardware or other equipment;
"Foreground Information" means all Intellectual Property first
conceived, developed, produced or reduced to practice as part of the
Work under the Contract;
"General Conditions" means the general conditions that form part of
the Contract;
"Intellectual Property" means any information or knowledge of an
industrial, scientific, technical, commercial, literary, dramatic,
artistic or otherwise creative nature relating to the Work, whether
oral or recorded in any form or medium and whether or not subject to
copyright; this includes but is not limited to any inventions,
designs, methods, processes, techniques, know-how, show-how, models,
prototypes, patterns, samples, schematics, experimental or test data,
reports, drawings, plans, specifications, photographs, manuals and
any other documents, Software, and Firmware;
"Intellectual Property Right" means any intellectual property right
recognized by law, including any intellectual property right
protected by legislation such as patents, copyright, industrial
design, integrated circuit topography, and plant breeders' rights,
or subject to protection under the law as trade secrets and
confidential information.
"Software" means any computer program whether in source or object
code (including Firmware), any computer program documentation
recorded in any form or upon any medium, and any computer database,
including any modification.
2. Canada's primary objective in entering into the Contract is to
receive the deliverables contracted for, to be able to use those
deliverables, and any Intellectual Property arising by virtue of the
Contract for Canada's activities, including future contracts,
procurements and to protect or advance the broader public interest.
These supplemental general conditions do not affect any existing
Intellectual Property Rights in any information belonging to Canada,
the Contractor or a third party.
3. Words and expressions defined in the General Conditions and used in
these supplemental general conditions have the meanings given to
them in the General Conditions. In the event of any inconsistency
between the General Conditions and these supplemental general
conditions, the applicable provisions of these supplemental general
conditions will prevail. If the General Conditions include a
section on "Copyright", they are amended by deleting the section in
its entirety.
4. If supplemental general conditions 4001, 4003 and 4004 are also
incorporated in the Contract, the provisions of those supplemental
general conditions concerning the ownership of Intellectual Property
will prevail in relation to the subject matter of those supplemental
general conditions.
5. References in these supplemental general conditions to the
Contractor owning the Foreground Information or any rights in it
refer to the Contractor, its subcontractors, its suppliers, its
agents, its representatives or any of their employees owning such
information or rights, as applicable.
4006 02 (2008-05-12) Records and disclosure of Foreground
Information
1. During and after the performance of the Contract, the Contractor
must keep detailed records of the Foreground Information, including
details of its creation, ownership and about any sale or transfer of
any right in the Foreground Information. The Contractor must report
and fully disclose to Canada all Foreground Information as required
by the Contract. If the Contract does not specifically state when
and how the Contractor must do so, the Contractor must provide this
information when requested by the Contracting Authority or a
representative of the department or agency for which the Contract is
performed, whether before or after the completion of the Contract.
2. Before and after final payment to the Contractor, the Contractor
must provide Canada with access to all records and supporting data
that Canada considers pertinent to the identification of Foreground
Information.
3. For any Intellectual Property that was developed or created in
relation to the Work, Canada will be entitled to assume that it was
developed or created by Canada, if the Contractor's records do not
list that Intellectual Property or do not indicate that it was
created by the Contractor, or by someone on behalf of the Contractor,
other than Canada.
4006 03 (2008-05-12) Ownership of Intellectual Property Rights in
Foreground Information
1. All Intellectual Property Rights in the Foreground Information
belong to the Contractor as soon as they come into existence.
2. Despite the Contractor's ownership of all the Intellectual Property
Rights in the Foreground Information, Canada has unrestricted
ownership rights in any prototype, model, custom or customized
system or equipment that is a deliverable under the Contract,
including manuals and other operating and maintenance documents.
This includes the right to make them available for public use,
whether for a fee or otherwise, sell them or otherwise transfer
ownership in them.
3. Any personal information, as defined in the Privacy Act, R.S., 1985,
c. P-21, collected by the Contractor in the execution of the Work
under the Contract becomes the property of Canada immediately upon
collection and must be used only for the performance of the Work.
The Contractor has no right in any such personal information.
4. If the Work under the Contract involves the preparation of a
database or other compilation using information or data supplied by
Canada and any personal information referred to above, the
Intellectual Property Rights in the database or compilation
containing such information will belong to Canada. The Contractor's
Intellectual Property Rights in the Foreground Information are
restricted to those capable of being exploited without the use of
the information or data supplied by Canada and the personal
information.
5. The Contractor must maintain the confidentiality of the information
or data supplied by Canada and the personal information as required
in the General Conditions. The Contractor must return all the
information belonging to Canada on request or on completion or
termination of the Contract. This includes returning all hard
copies and electronic copies as well as any paper or electronic
record that contains any part of the information or information
derived from it.
4006 04 (2008-05-12) Licenses to Intellectual Property Rights in
Foreground and Background Information
1. As Canada has contributed to the cost of developing the Foreground
Information, the Contractor grants to Canada a license to exercise
all Intellectual Property Rights in the Foreground Information for
Canada's activities. Subject to any exception described in the
Contract, this license allows Canada to do anything that it would be
able to do if it were the owner of the Foreground Information, other
than exploit it commercially and transfer or assign ownership of it.
The Contractor also grants to Canada a license to use the Background
Information to the extent that it is reasonably necessary for Canada
to exercise fully all its rights in the deliverables and in the
Foreground Information.
2. These licenses are non-exclusive, perpetual, irrevocable, worldwide,
fully-paid and royalty-free. Neither license can be restricted in
any way by the Contractor providing any form of notice to the
contrary, including the wording on any shrink-wrap or click-wrap
license or any other kind of packaging, attached to any deliverable.
3. For greater certainty, Canada's licenses include, but are not
limited to:
(a) the right to disclose the Foreground and Background
Information to third parties bidding on or negotiating
contracts with Canada and to sublicense or otherwise
authorize the use of that information by any contractor
engaged by Canada solely for the purpose of carrying out such
contracts. Canada will require these third parties and
contractors not to use or disclose that information except as
may be necessary to bid on, negotiate or carry out those
contracts;
(b) the right to disclose the Foreground and Background
Information to other governments for information purposes;
(c) the right to reproduce, modify, improve, develop or translate
the Foreground and Background Information or have it done by
a person hired by Canada. Canada, or a person designated by
Canada, will own the Intellectual Property Rights associated
with the reproduction, modification, improvement, development
or translation;
(d) without restricting the scope of any license or other right
in the Background Information that Canada may otherwise hold,
the right, in relation to any custom-designed or
custom-manufactured part of the Work, to exercise such of the
Intellectual Property Rights in the Background Information as
may be required for the following purposes:
(i) for the use, operation, maintenance, repair or
overhaul of the custom-designed or custom-manufactured
parts of the Work;
(ii) in the manufacturing of spare parts for maintenance,
repair or overhaul of any custom-designed or
custom-manufactured part of the Work by Canada, if
those parts are not available on reasonable commercial
terms to enable timely maintenance, repair or overhaul;
(e) for Software that is custom designed for Canada, the right to
use any source code the Contractor must deliver to Canada
under the Contract.
4. The Contractor agrees to make the Background Information, including
in the case of Software, the source code promptly available to
Canada for any purpose mentioned above. The license does not apply
to any Software that is subject to detailed license conditions that
are set out elsewhere in the Contract. Furthermore, in the case of
commercial off-the-shelf software, the Contractor's obligation to
make the source code promptly available to Canada applies only to
source code that is within the control of or can be obtained by the
Contractor or any subcontractor.
4006 05 (2008-05-12) Contractor's Right to Grant Licenses
The Contractor represents and warrants that it has the right to grant to
Canada the licenses and any other rights to use the Foreground and
Background Information. If the Intellectual Property Rights in any
Foreground or Background Information are or will be owned by a
subcontractor or any other third party, the Contractor must have or obtain
promptly a license from that subcontractor or third party that permits
compliance with section 4 or arrange, without delay, for the subcontractor
or third party to grant promptly any required license directly to Canada.
4006 06 (2008-05-12) Waiver of Moral Rights
If requested by Canada, during and after the Contract, the Contractor must
provide a written permanent waiver of moral rights, as defined in the
Copyright Act, R.S., 1985, c. C-42, from every author that contributes to
any Foreground Information subject to copyright protection that is a
deliverable to Canada under the Contract. If the Contractor is an author
of the Foreground Information, the Contractor permanently waives the
Contractor's moral rights in that Foreground Information.
4006 07 (2008-05-12) License to Intellectual Property Rights to
Canada's Information
1. Any information supplied by Canada to the Contractor for the
performance of the Work remains the property of Canada. The
Contractor must use Canada's Information only to perform the
Contract.
2. If the Contractor wants to use any information owned by Canada for
the commercial exploitation or further development of the Foreground
Information, the Contractor must obtain a license from the
department or agency for which the Contract is performed. In its
request for a license to that department or agency, the Contractor
must explain why the license is required and how the Contractor
intends to use the information. If the department or agency agrees
to grant a license, conditions will be negotiated between the
Contractor and that department or agency and may include the payment
of a compensation to Canada.
4006 08 (2008-05-12) Transfer or License of Contractor's Rights
1. During the Contract, the Contractor must not sell, transfer, assign
or license the Foreground Information without first obtaining the
Contracting Authority's written permission.
2. After the Contract, if the Contractor transfer ownership in the
Foreground Information, the Contractor is not required to obtain
Canada's permission, but must notify the department or agency for
whom the Contract is performed in writing of the transfer by
referring to the serial number of the Contract and its date and by
providing details about the transferee, including the conditions of
the transfer. The Contractor must ensure that the transfer requires
the transferee to notify the Canada of any future transfer. Any
transfer must be subject to all Canada's rights to use the
Foreground Information.
3. After the Contract, if the Contractor grants a license or any other
right (other than a transfer of ownership) to a third party to use
the Foreground Information, the Contractor is not required to notify
Canada, but the license or right granted must not affect Canada's
rights in any way.
4. If the Contractor at any time transfers ownership of or grants
rights in the Foreground Information that interfere in any way with
Canada's rights to use the Foreground Information, the Contractor
must, if requested by Canada, immediately take all steps necessary
to restore Canada's rights. If the Contractor is not successful in
doing so, within the time reasonably required by Canada, the
Contractor must immediately reimburse Canada for all costs Canada
incurs to do so itself.
4006 09 (2008-05-12) Transfer of Intellectual Property Rights upon
Termination of the Contract for Default
1. If Canada terminates the Contract in whole or in part for default,
Canada may, by giving notice to the Contractor, require the
Contractor to transfer to Canada all the Intellectual Property
Rights in the Foreground Information, including the rights owned by
subcontractors. In the case of Intellectual Property Rights in the
Foreground Information that have been sold or assigned to a third
party, the Contractor must pay to Canada on demand, at Canada's
discretion, the fair market value of the Intellectual Property
Rights in the Foreground Information or an amount equal to the
payment received by the Contractor from the sale or assignment of
the Intellectual Property Rights in the Foreground Information.
2. In the event of the issuance of a notice under subsection 1, the
Contractor must, at its own expense and without delay, execute such
documents relating to ownership of the Intellectual Property Rights
as Canada may require. The Contractor must, at Canada's expense,
provide all reasonable assistance in the preparation of applications
and in the prosecution of any applications for registration of any
Intellectual Property Rights in any jurisdiction, including the
assistance of the inventor in the case of an invention.
4006 10 (2008-05-12) Products created using the Foreground
Information
If the Contractor uses the Foreground Information to develop any new
product or any improvement in any existing product, the Contractor agrees
that, if Canada wishes to purchase such new or improved product, the
Contractor must sell them to Canada at a discount off the lowest price for
which it has sold those products to other customers, to recognize Canada's
financial contribution to the development of those products.