Common use of Unjustified markings Clause in Contracts

Unjustified markings. (1) An un- justified marking is an authorized marking that does not depict accu- rately restrictions applicable to the Government’s use, modification, repro- duction, release, or disclosure of the marked computer software or com- puter software documentation. For ex- ample, a restricted rights legend placed on computer software developed under a Government contract either exclu- sively at Government expense or with mixed funding (situations under which the Government obtains unlimited or government purpose rights) is an un- justified marking. (2) Contracting officers have the right to review and challenge the valid- ity of unjustified markings. However, at any time during performance of a contract and notwithstanding exist- ence of a challenge, the contracting of- ficer and the person who has asserted a restrictive marking may agree that the restrictive marking is not justified. Upon such agreement, the contracting officer may, at his or her election, ei- ther— (i) Strike or correct the unjustified marking at that person’s expense; or (ii) Return the computer software or computer software documentation to the person asserting the restriction for correction at that person’s expense. If the software or documentation are re- turned and that person fails to correct or strike the unjustified restriction and return the corrected software or documentation to the contracting offi- cer within 60 days following receipt of the software or documentation, the un- justified marking shall be corrected or stricken at that person’s expense.