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MORE Consortium Terms of Reference

Professor Mike Kim of the University of Toronto’s (the “University”) Department of Mechanical and Industrial Engineering is undertaking a research project entitled MORE (Maintenance Optimization & Reliability Engineering): CBM (Condition-Based Maintenance) and Beyond (the “MORE Project”).

The aim of the MORE Project is to develop and refine complex mathematical models that convert machine condition and maintenance event data into useful information from which the ultimate step in the condition-based maintenance process occurs: asset health evaluation and an optimal maintenance decision.

In the course of undertaking the MORE Project the University will continue to enhance and develop the theory underlying the two existing University developed software products EXAKT, and SMS.

Funding for the MORE Project is being provided in part through corporate and government entities.

The purpose of this document is to specify and describe the terms and conditions under which the MORE Project will be undertaken and the rights and obligations of the parties participating in the MORE Project.

1. Definitions

  1. "Consortium” means the Members and the University;
  2. "Documentation” means all programming and documentation standards and other textual technical information and materials relating to the MORE Code, including flow charts, operating instructions, and related technical information. Documentation shall also include customary end-use materials, such as user manuals;
  3. "Enhancements” means changes, additions or modifications made to the MORE Code or Documentation, which do more than correct an incorrect functioning of MORE Code, support new releases of the operating systems with which the MORE Code is designed to operate, support new input/output (I/O) devices, or provide other updates and corrections and that adds significant new functions or substantially improved performance of the MORE Code by changes in system design or coding;
  4. “Fee Schedule” means the schedule of fees detailing the initiation fee and the annual fee amounts for Members attached as Appendix A including any revisions to such schedule made in accordance with these terms of reference;
  5. “Member” means an individual or organization that has joined the Consortium though the payment of the initial membership fee and the continued payment of annual fees;
  6. “Member's Delegate” means the individual with the authority to represent a Member for the purposes of the Consortium;
  7. “MORE Code” means (i) the existing EXAKT and SMS software together with any relevant updates, modifications or revisions to the software that is not an Enhancement; and (ii) any new software developed in the course of the MORE Project that is not an Enhancement; and (iii) all Enhancements to any of the foregoing;
  8. “Principal Investigator” means Prof. Mike Kim.

2. Membership

  1. Membership in the Consortium shall be limited to persons and entities interested in furthering the objects of the MORE Project, who have been invited to join by the Principal Investigator, and who have paid the initial membership fee as set out in the Fee Schedule.
  2. To maintain status as a Member, Members must pay the non-refundable annual dues according to the Fee Schedule.
  3. Payment of the initial fees and annual dues by a Member indicates their agreement and acceptance of these terms of reference for participation in the Consortium.
  4. Every Member shall designate a Member's Delegate.
  5. The interest of a Member in the Consortium is not transferable and ceases to exist upon the Member's dissolution, bankruptcy, insolvency, or when the Member ceases to be a Member by i) written withdrawal by the Member; ii) failure to pay annual dues; or iii) written termination by the University for either a failure to comply with these Terms of Reference or upon the termination of the MORE Project for whatever reason.

3. Administration and Governance

  1. The University has the overall responsibility for the management, provision of services, direction and accountability of the Consortium and shall do so in accordance with the terms and reference set out herein.
  2. The Principal Investigator shall supervise the day to day operation of the MORE Project.
  3. The University shall hold bi-annual meetings of the Members to update them on progress of the MORE Project and the affairs and activities of the Consortium during the previous period.  The University shall solicit recommendations from the Members on the ongoing operation, objectives, management and direction of the MORE Project and the Consortium at the bi-annual meetings.
  4. The Members shall elect every three years a Member representative from the Member Delegates.   The elected Member representative shall, on behalf of the Members, consult with the University on issues regarding administrative issues concerning the operation of the Consortium.  A Member Delegate shall be eligible for re-election.
  5. The University shall not implement a change to these terms of reference or the Fee Schedule without approval of a majority of the then present Members obtained at a bi-annual meeting.
  6. Notwithstanding (e) above, the University may dissolve the Consortium upon the conclusion of the MORE Project.
  7. Neither the University nor the Members are or should be considered to be, and will not represent themselves to be joint venturers, partners or agents of each other and will have no power to bind or obligate each other except as set forth in this Agreement.  The parties mutually covenant and agree that they will not, in any way, incur any contractual or other obligation in the name of any other party, nor will they have liability for any debts incurred by other parties.
  8. In the implementation of the objectives of the MORE Project, the University may prepare proposals for submission to government funding agencies (“Funding Proposals”).  Prior to submitting any such Funding Proposal the University provide a copy of the Funding Proposal to the elected Member representative for review and comments and shall obtain the approval of those Members whose annual fees are used as a match for the Funding Proposal before submission.

4. License to use the MORE Code

  1. The University shall retain all ownership of and full rights to the MORE Code and Documentation in any form and all intellectual property rights therein.
  2. Each Member has a non-exclusive, royalty free license to use the MORE Code and Documentation, including all intellectual property rights therein, for its own internal activities including research, operations and maintenance.  In the case of a Member with multiple locations, use will be restricted to specified locations approved by the University from time to time.  Such license shall not include the right to sublicense or sell the MORE Code to third parties, or to use the MORE Code to provide consulting services to third parties.
  3. Upon receipt of the initial membership fee from a Member, the University shall deliver to the Member one copy of the MORE Code in executable form and all supporting Documentation. The University shall provide the Members with Enhancements developed in the preceding six-month period at the bi-annual meetings.
  4. A Member shall secure and protect the MORE Code and Documentation in a manner consistent with the maintenance of the University’s rights therein and shall reproduce all copyright and other such notices on all copies of the MORE Code and Documentation in the same format as the original.
  5. Notwithstanding a Member’s withdrawal from the Consortium the Member shall be entitled to continue its use of the MORE Code received up to the date of withdrawal.
  6. Members shall not be prohibited or restricted from independently developing or acquiring and programs that are competitive or complementary to the MORE Code and all such rights in such programs shall vest with the Member.  Notwithstanding the foregoing Members shall not modify, reverse engineer, disassemble, or decompile the MORE Code, or any portion thereof.

5. Confidentiality

  1. It is expected that parties will disclose confidential business or technical information  or data (“Confidential Information”) to other parties in the Consortium to facilitate work on the MORE Project.   All such Confidential Information must be identified in writing by the disclosing party at the time of its disclosure; or (ii) or identified orally as such by the disclosing party at the time of its disclosure and minuted and confirmed in writing within two weeks of the oral identification.
  2. The University and the Members agrees that Confidential Information will be safeguarded and only disclosed to persons with a need to know within their organization. No party will use another party’s Confidential Information for any purpose except that for which it was initially provided. All parties will take such steps as a reasonably prudent commercial enterprise would take to protect its own confidential information from disclosure to third parties not bound by relevant nondisclosure agreements.
  3. The obligation to keep Confidential Information confidential will not apply to Confidential Information which:
    1. is already known at the time of disclosure to the party to whom it is disclosed and that party can prove by written records that it is already known;
    2. is or becomes part of public domain without material breach of this Agreement by the party seeking to rely on this exclusion;
    3. is obtained from third parties which impose no related confidentiality obligations on the disclosing party;
    4. is authorized for release by the disclosing party; or
    5. is required to be disclosed by law or order of a court, governmental tribunal or governmental agency, but the party subject to such requirement will promptly notify the disclosing party and give the disclosing party a reasonable opportunity to seek a confidentiality order or the like.
  4. The University and Members accept and agree that this obligation of confidentiality will continue from the time of disclosure until such Confidential Information becomes part of the public domain or until five (5) years after the termination of the Consortium, whichever occurs first.
  5. The obligation of confidentially shall impose no restrictions on the content or handling, for academic purposes, of theses, of the University participants in the MORE Project save and except that a party whose Confidential Information is contained in the thesis may request that a thesis defence be held in camera and that the members of the thesis examination board, including the external examiner(s), be required to sign a non-disclosure agreement.

6. Publications

  1. Subject to the confidentiality obligation, the University may disseminate information or otherwise publish the research results arising in performance of MORE and shall acknowledge the support of the Members in all such publications.

7. No Warranties

  1. THE UNIVERSITY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE MORE CODE, DOCUMENTATION OR ENHANCEMENTS.  THE UNIVERSITY DOES NOT WARRANT AS TO THE ACCURACY OF THE MORE CODE, DOCUMENTATION OR ENHANCEMENTS OR THAT THE OPERATION OF THE MORE CODE, DOCUMENTATION OR ENHANCEMENTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY PROGRAM DEFECTS WILL BE CORRECTED.
  2. In no event will the University be liable to any Member for any indirect, special or consequential damages or financial loss arising in connection with the performance and results of the MORE Project or use of or reliance on the MORE Code or Documentation.

8. Notices

  1. Except as otherwise expressly provided herein any notice, communication or other document to be given to any Member shall be sufficiently given if delivered personally or sent by regular mail, or facsimile to the attention of the Member Delegate at the address recorded in the Consortium membership list  Any notice given by regular mail shall be deemed to have been received by the parties to whom the same is addressed on the seventh (7th) business day following the day upon which such notice has been deposited in a post office with sufficient postage.  Any notice given by hand or by telecopier shall be deemed to have been received by the parties to whom such notice is so delivered on the following business day.
  2. Notice provided to a Member's Delegate shall constitute notice provided to that Member, and attendance by a Member's Delegate shall constitute attendance in person by that Member.
  3. An updated copy of the Consortium membership list shall be provided to the Members at the bi-annual meeting.

9. Dispute Resolution

  1. In the event of a dispute, the relevant parties shall initially use their respective best efforts to resolve the matter in a fair and reasonable manner.  If such dispute cannot be settled by the parties among themselves, the dispute shall be referred to mediation by a mutually appointed mediator.  In the event that the mediation process does not occur or is not successful, the dispute shall be determined by a single arbitrator pursuant to the Arbitration Act, 1991 (Ontario).  The parties acknowledge and agree that the arbitrator may make such order as it sees fair and reasonable requiring a party to pay another party’s costs of such dispute resolution procedures.

A. Fee Schedule

Members shall make the following contributions towards the costs of the Consortium:

Initial Fee: $13,000
Annual Dues: $26,000

A Member’s initial fee is due within 30 days of receipt of an invoice from the University issued upon their acceptance of a Member in the Consortium by the Principal Investigator. Annual due will be due within 30 days of receipt of an invoice from the University issued January 2, or some other date as mutually agreed upon.

A Member may request, in writing to the Principal Investigator, for the provision of support or services related to the MORE Project.  In such a case the Member shall reimburse the Principal Investigator for all reasonable travel and other out-of-pocket expenses associated with the request and such reimbursement shall not count toward the annual dues.

All fees and dues received by the University shall be used by the MORE Project.