Legal agreement (official)

Help text (unofficial)

These are the basic Terms of Sponsorship Agreement of the Open Source Collective. This Collective member agreement (“Agreement”) is entered into effect when the Terms of Sponsorship Agreement are accepted when creating a Collective and requesting fiscal sponsorship by the Open Source Collective (“Effective Date”) by and among Open Source Collective, a California nonprofit mutual benefit corporation (“OSC”) and each individual sponsored project (“Collective”).

These are the terms we agree to when the Open Source Collective fiscally hosts a Collective. It takes effect when your Collective is approved, after you ticked the agree box in your application. In this document, the Open Source Collective is called “OSC” (us) and the project is called the “Collective” (you), and “Fiscal hosting” is called “fiscal sponsorship”.

RECITALS

The parties enter into this Agreement with reference to the following facts:

1. OSC is a California nonprofit mutual benefit corporation organized and operated exclusively as a 501(c)(6) business league, no part of the net earnings of which inures to the benefit of any private shareholder or individual. The specific purpose of OSC is to promote a sustainable and healthy ecosystem to sustain open source technology for the future through the advancement of the common interests of those in the open source profession who create, use, support and rely on open source software within the open source technology space (“OSC’s Mission”).

OSC is a nonprofit, meaning our income is not used for private or shareholder benefit. Our resources are all invested back into our mission: to promote a sustainable and healthy open source ecosystem and work for the common interests of those who create and use open source software.

2. Collective is a nonprofit association with the purpose of furthering a project (the “Project”) that has met OSC’s criteria as set forth in the OSC protocols, which are attached as Exhibit A (“Protocols”) and hereby incorporated by reference, and Collective’s mission is consistent with OSC’s Mission.

You told us about your Collective’s mission when you created your Collective, and we agree that it meets OCS’s criteria.

3. Collective desires to become a Collective of OSC to support the Project, and OSC desires to accept Collective as a collective of OSC in support of the Project, upon the terms and subject to the conditions set forth herein.

We want to fiscally host you, and you want to be fiscally hosted by us, because our missions are in alignment.

4. In support of the Project, OSC has approved the establishment of a restricted fund (the “Fund”) to receive funds earmarked for support of the Project and to grant all amounts it may receive and deposit in that Fund (less any administrative charges, interest, and expenses) to the Collective for reimbursement of the expenses associated with the Project.

We will hold funds and pay them out on your Collective’s behalf, minus fees. We won’t use your Collective’s money for anything else.

AGREEMENT

In consideration of the mutual promises and agreements in this Agreement, the parties agree as follows:

1.         RECITALS

The above cited Recitals are incorporated herein by this reference and made a part of this Agreement.

We all agree to the facts in the “recitals” section above.

2.        TERM OF AGREEMENT 

This Agreement shall commence on the Effective Date, and will continue unless and until terminated under Section 6 of this Agreement.

This agreement starts when OSC becomes the Collective’s fiscal host, and will continue until terminated (as explained in section 6 below).

3.         RELATIONSHIP & PROCESS

OSC will assist in managing the Fund and any Other Assets (as defined in Section 3(E) below) held for the benefit of the Project. OSC will collect the income and will pay and disburse the net income and principal, less Dues and Expenses (as defined by the Protocols) for purposes of the Project as specifically set forth in the Protocols.

We will collect money on your behalf, and will pay it out for expenses related to your project, as long as they meet the requirements explained below.

A. Relationship of the Parties. 
Nothing in this Agreement constitutes the naming of the Collective or members or agents of the Collective as an agent or legal representative of OSC for any purpose whatsoever except as specifically and to the extent set forth herein.

You can’t legally represent or act for OSC, except in the specific ways laid out in this agreement.

B. Protocols.
OSC will manage the Fund according to the Protocols. OSC may update the Protocols from time to time. If OSC makes any changes to the Protocols that significantly affects Collective’s rights or obligations under this Agreement, OSC will notify Collective of the changes, and the changes will become effective 30 days after that notification.

We will manage your funds according to the processes explained below, which we may adapt or improve over time.

C. Solicitation of Funds. 
The Collective may solicit gifts, contributions, sponsorships, and grants to OSC, as well as revenue from the sale of products for the purpose of the Project. However, Collective understands, acknowledges and agrees that such funds collected by OSC on behalf of the Project are not tax-deductible as charitable contributions by contributors or Collective, and that it is the responsibility of each contributor to determine the tax treatment of its own contributions. Collective shall notify all prospective contributors, in writing where possible, that contributions are not tax-deductible as charitable contributions.

You can fundraise through your Collective. These contributions are not tax deductible.

D. Agreements with Third Parties.
Collective is not authorized to enter into any agreement or obligation with a donor, sponsor, vendor or other third party that purports to bind OSC or the Project, including any agreement restricting the use of any contribution. OSC must approve, in advance and in writing, any agreement with a third party committing Project funds or establishing any obligation on the part of OSC or the Project.

If you want to enter into an agreement with someone else, such as a contract with a vendor or sponsor, you need to get our permission, because legally that agreement is with OSC.

E. Ownership of Project Property. 
As between the parties, Collective shall retain all right, title, and interest in any intellectual property of the Project, including any copyrights, trademarks, trade names, artwork, designs, logos, copy, and all other intellectual property (collectively, “Intellectual Property”). Furthermore, Collective represents that it has the authority to represent the interests  of and act on behalf of the Project. OSC acknowledges and agrees that, absent any separate agreement to the contrary, any Intellectual Property provided to OSC by Collective or its agents for inclusion in the Project shall not thereby be transferred to OSC.

Notwithstanding the paragraph above, Collective may separately agree to transfer assets, including Intellectual Property and physical property, to OSC to be held for the benefit of the Project. Any such transferred assets (“Other Assets”) shall become the property of OSC.

You own the intellectual property of your project. If you provide something like a logo for use on your Collective page, it still belongs to you. You may choose to transfer project assets to us.

4.        THE PROJECT

According to the terms of this Agreement, OSC will create a Fund for the Project to receive funds earmarked for support of the Project, and to make disbursements for expenses incurred in furtherance of the Project.  Beginning on the Effective Date, OSC will place all such revenues received by OSC and identified with the Project into the Fund to be used for the benefit of the Project’s mission. Any significant changes to the Project’s mission must be approved in advance by OSC to ensure alignment with OSC’s Mission. OSC will exercise full control over the Project’s financial administration, management, and disbursement of the Fund and any Other Assets. OSC shall have the right to deduct Project Dues and Expenses, as defined by the Protocols, directly from the Fund without further approval by the Collective.

We will accept, hold, track, and pay out money for your project. We will use that money only to further the mission of your project.

You can update your project’s mission, but we’ll need to re-approve it to make sure it still fits OSC’s criteria.

We’ll do all the admin and financial management related to paying out money from your Collective.

A. Restricted Fund: OSC’s Income. 
The parties agree that all money and the fair market value of the Fund and all Other Assets will be reported as the income of OSC, for both tax purposes and for purposes of OSC’s financial statements. Accordingly, OSC is responsible for the processing and deposit in the Fund of all monies received for the Project.

We’re responsible for taxes and accounting, and money for your project will be reported as OSC’s income.

It’s our responsibility to make sure money contributed for your Collective is credited to your Collective’s balance.

B. Restricted Fund: Disbursements. 
OSC will disburse monies from the Fund and dispose of Other Assets only for valid expenses of the Project, and only upon receipt of a request from Collective detailing and documenting the expense as specifically set forth in the Protocols.

You can submit expenses and we’ll pay them out from your Collective’s funds.

5.        FUND FOR PROJECT PURPOSES

All of the assets received by OSC under the terms of this Agreement, less Dues and Expenses, will be devoted to the purposes of the Project in furtherance of OSC’s exempt purposes. The Collective agrees it will use the funds OSC disburses to it from the Fund solely for the purposes of the Project, and it will repay to OSC any portion of those funds that is not spent or committed for those purposes.

Contributions to your Collective must be devoted to your project’s mission. You can’t use your Collective’s funds for anything else, and if you do you have to pay it back.

6.        TERMINATION

Either OSC or Collective may terminate this Agreement on 30 days' written notice to the other party. If there is a positive balance in the Project Fund or OSC holds Other Assets of the Project at the time of termination, the Project’s assets will be distributed as follows:

1. OSC will reimburse any valid expenses of the Project upon receipt of a final request from Collective, submitted within 15 days of notice of termination, detailing and documenting the expense as specifically set forth in the Protocols.
2. Within the 30 day notice period, Collective may identify a successor organization who is willing and able to carry on the Project, and (i) which is recognized as tax-exempt under Internal Revenue Code (the “Code”) section 501(c)(3) or 501(c)(6) or (ii) to which distribution of the Project Fund and Other Assets is otherwise consistent with applicable tax and charitable trust laws (a “Successor”). Upon determining that the Successor meets these qualifications and that the distribution is permitted by applicable law, OSC will transfer the balance of assets in OSC’s restricted Fund for the Project, together with any Other Assets held or liabilities incurred by OSC in connection with the Project, to the Successor. To initiate the transfer, the Successor payee must submit an expense as outlined in the Protocols. The transfer will be made after the end of the notice period or any extension thereof, subject to the approval of any third parties that may be required.
3. As an alternative to a Successor, Collective may choose to transfer the balance of its Fund to another OSC Collective’s Fund, or to OSC’s general operating Fund, subject to applicable law.
4. If no Successor or other qualified recipient is identified prior to the end of the notice period (including any mutually agreed extensions), OSC may, in its sole discretion, distribute or spend the Project Fund and dispose of Other Assets in any manner consistent with applicable tax and charitable trust laws, which may include granting any balance to another fiscal sponsor, re-allocating any balance to another Collective for substantially similar purposes, or using any balance to defray OSC’s costs of administering its fiscal sponsorship program.

Either you or we can end this relationship with 30 days’ notice.

If you want to shut down your Collective and there are assets left, you can pick one of these options: withdraw all funds by submitting a valid expense, identify a suitable organization to transfer the assets to, or give the assets to another OSC Collective. If you don’t pick any of the options, we will decide what to do with the assets.

7.        NOTICE

Any notice, demand, delivery, or other communication under this Agreement will be in writing and will be deemed properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or send by facsimile or email in the manner provided in this paragraph to the following persons:

To OSC:
Open Source Collective

440 N. Barranca Avenue, #3939

Covina, CA 91723

Email: hello@oscollective.org

To Collective:
Collective name, Email address, and information

provided when creating or updating the Project

If you need to give us notice of something relevant to this agreement, it needs to be in writing. You can email us or mail us a letter.

If we need to notify you of something, we will do it in writing using the contact info you’ve provided.

8.        ARBITRATION

Any controversy, claim, or dispute between the parties arising from or related to this Agreement that cannot be resolved through discussions between the Collective and OSC’s leadership must be submitted to mediation before a single mediator mutually agreed to by the parties. If the claim or dispute is not resolved through mediation, it will be submitted to legally binding arbitration before an arbitrator mutually agreed to by the parties. The arbitration will be governed by the rules of the American Arbitration Association. Binding arbitration under this provision is the sole and exclusive remedy for resolving any such dispute or claim, and no party has right to a trial in the civil courts or any right to appeal the arbitrator’s decision, except as may be permitted by the arbitration rules.  Judgment upon the award rendered by the arbitrator may be entered in any court otherwise having jurisdiction thereof. The parties will evenly split the costs of the arbitration. Each mediator and arbitrator under this provision must be an attorney who has been licensed to practice law in the State of California or any other state for at least 10 years. If the parties cannot agree upon a qualified mediator or arbitrator, each party will select a qualified person and those two (2) will select a third qualified person to be the sole mediator or arbitrator. Notwithstanding the above, neither party is prevented from obtaining injunctive or other equitable relief from a court of competent jurisdiction pending the resolution of a dispute through mediation or arbitration.

If we have a dispute related to this agreement, we will first try to work it out by discussing it together.

If that doesn’t resolve the problem, we will do mediation with someone we both approve.

If that doesn’t resolve the problem, we will go to binding arbitration, instead of going to court. That means a qualified person will hear both sides and then make a decision, which we will all have to abide by.

If we go to arbitration, we will split the cost.

9.        ATTORNEY’S FEES

The prevailing party in any legal action to enforce this Agreement is entitled to recover its costs and reasonable attorney’s fees in addition to any other relief granted.

If there is legal action related to this agreement, the winning side will have its costs and legal fees paid by the losing side.

10.        CHOICE OF LAW

This Agreement is governed by and interpreted in accordance with the laws of the State of California applicable to agreements made and to be enforced entirely within such State. The sole situs of all mediation, all arbitration, and any other form of dispute resolution for any controversy or claim arising out of this Agreement is the County of Los Angeles in the State of California in the United States of America.

This agreement is governed by the laws of the State of California. If there’s a dispute resolution process, it will take place in Los Angeles.

11.        ENTIRE AGREEMENT; MODIFICATION

This Agreement supersedes any prior oral or written understandings or communications between the parties and constitutes the entire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified, except in a writing signed by both parties hereto.

This agreement is the official one when it comes to the issues covered in this document, regardless of any other communication or understanding between us. We both have to agree for this agreement to be changed.

12.        MISCELLANEOUS

Each provision of this Agreement will be separately enforceable, and the invalidity of one provision will not affect the validity or enforceability of any other provision. The failure of OSC to exercise any of its rights under this Agreement will not be deemed a waiver of such rights.

If one part of this agreement is invalid, it doesn’t invalidate the rest.

If we don’t exercise a right that we have, it doesn’t mean we’re giving up that right for the future.

13.        COLLECTIVE RECEIPT OF AGREEMENT

By agreeing to this Agreement, the Collective acknowledges that each member and agent of the Collective has received a complete copy of this Agreement, including Exhibit A, Protocols.

You acknowledge that you have received this document and agree to what it says.

14.        COLLECTIVE LIABILITIES & INDEMNIFICATION

Collective is responsible for all activities of its Project, including any financial or other liabilities and hereby agrees that it will not enter into any conflicting obligations herein as it pertains to this subject matter. Collective shall indemnify, defend and hold harmless OSC and its respective agents, representatives, employees, directors, managers, members, and officers from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) resulting from Collective’s performance of its obligations contained herein; injury (including sickness, disease or loss of life) to any person, or damage to any property of any third party at or as a result of Collective’s activities of its Project, including that caused by Collective’s willful, wanton or intentional acts; Collective’s improper use of or claim to the Project, including those made by any third party for Collective’s violation of any intellectual property laws; or Collective’s operations of the activities under its Project.

You are responsible for your project’s activities.

You won’t enter into another agreement that conflicts with this one.

You can’t hold tOSC responsible or sue us if you or your project hurt someone, cause damage, or fail to honor this agreement.

EXHIBIT A

Protocols

The following are protocols of OSC; these Protocols may be amended by OSC with 10 days notice at any time.

These are our policies and processes. We may change them in the future as long as we give you 10 days notice.

1. Criteria: Collective has provided evidence and OSC has confirmed that Collective has met the following criteria for admission to OSC as a Collective:

We confirm your project meets our criteria based on the evidence you provided.

a. Collective qualifies as one of the following:

• Open source digital infrastructure project
• advocacy initiative
• conference (such as SustainOSS)
• research and awareness program

Your Collective represents an open source software project and/or is focused on advocacy, events, awareness, or research related to open source.

b. Collective has provided the following information to OSC and OSC has confirmed that Collective is eligible for OSC’s assistance based on one (1) or more of the following:

Based on the evidence you provided, we confirm you are eligible because you meet at least one of the below criteria.

• Evidence of the Collective’s publications and participation in conferences/events about supporting public digital infrastructure;
• Evidence that the Collective conducts conferences/meetings/gatherings that have as their main purpose bringing together a diversity of actors in the industry to discuss, design support strategies and/or educate on the importance of supporting our common and open digital infrastructure;
• Evidence that the Collective makes its open source code available for public review;
• Evidence that the Collective’s open source libraries are depended upon by the community (how many other open source projects or software depend on these libraries?); and/or
• Evidence that the Collective is a research group that has the goal of producing data and analyses about the state of the public digital infrastructure in order to inform support and grant strategies.

2. Requirements Imposed on Collective: To remain compliance under the terms of this Agreement, Collective must keep an open source license and its code publicly available at all times; use the funds received for stated activities only; and maintain at all times a public and transparent ledger for the disbursement of those funds.

Your project must: publish your code under an open source license and make it public, only use the funds for your stated mission, and maintain a transparent budget through your Collective.

3.  OSC Dues and Expenses: Collective will be required to pay membership dues (“Dues”) and cover any expenses OSC incurs on Collective’s behalf as a result of this Agreement. Collective is responsible to pay from the Fund the Dues and expenses as follows:

You agree to fees and expenses being automatically deducted from your Collective balance.

1. Dues consist of:

1. 10% of all of the funds deposited into the Fund, regardless of source, as an administrative fee; and  
2. All interest earned on the Fund which will be retained in OSC’s general fund.  

2. Expenses: In addition to the Dues, Collective is responsible for any merchant account credit card processing fees incurred by OSC as a result of administration of the Fund, which are directly related to Collective’s Project. Such expenses shall be pulled directly from the Fund by OSC.

You will pay a 10% fee, plus payment processor fees. This covers both fiscal hosting and use of the Open Collective platform.

Interest earned from money held on your behalf goes to OSC.

You will also pay for payment processing fees from your Collective balance.

4.  Platform: Upon execution of this Agreement, the Collective’s Project will be featured on the accounting and crowdfunding platform (the “Platform”) located at https://opencollective.com, specifically on the Open Source Collective’s page, which is owned by OpenCollective Inc., a Delaware stock corporation. OSC will set Collective up on the Platform such that Collective will have its own dedicated page that tracks, in total transparency, the funds that it raises and the expenses it incurs in relation to the Project. The Collective’s page on the Platform will be linked to OSC’s payment processing accounts so that OSC has control over the funds received and disbursed under the Platform for purposes of Collective’s Project. The Platform thus serves as a fundraising avenue for the Collective’s approved Project, enabling it to raise funds and be reimbursed expenses incurred in relation to the Project. The Platform makes the revenue and expenses of the Collective available to the public through a transparent ledger.

Your Collective will show up on the Open Source Collective’s webpage.

Your Collective will have its own page on the Open Collective platform, showing your transparent budget, which you can use for fundraising.

Your Collective is linked to OSC’s Stripe, Transferwise, and Paypal accounts, to facilitate accepting and paying out money, which we manage.

5. Disbursements: In order to receive a disbursement from the funds raised to cover expenses incurred in furtherance of the Project, the Collective must upload its receipts/invoices onto the Platform for review by the OSC staff. Upon OSC’s receipt of said receipts/invoices it will review all documentation to ensure the expenses incurred are valid and in alignment with OSC’s exempt purposes and the terms of this Agreement. Upon approval by the OSC staff, OSC will reimburse those expenses to the Collective through the Platform using PayPal or another mutually agreed payment option. Each time OSC reimburses Collective for such expenses, the funds allocated to Collective on the Platform will automatically decrease by the amount reimbursed.

To trigger a payout of your funds, submit an expense through your Collective with a receipt or invoice, and approve it as the Collective admin. Then we will review it to make sure it’s valid.

Once approved by both you and us, we will pay the expense and automatically deduct that amount from your Collective balance.

5. Funds Received/Expenses Paid Outside Platform: In the event that Collective receives funding outside of the Platform (that which does not go directly into the Fund), OSC will use a feature enabled on the Platform to ‘Manually Add Funds’ to Collective’s page. This means that OSC will assign the funds received in the Fund destined to the Project for the Collective, thus increasing its budget. In the same fashion, if an expense is paid outside of the Platform by Collective, because for example the recipient does not hold a PayPal account or another payout method is required, then OSC will use the ‘Already Reimbursed’ feature on the Platform, that allows OSC to record that an expense has already been paid through a different method and that amount is automatically deducted from the Collective’s Fund balance.

If you raise funds for your project outside of the Open Collective platform and send them to us, we will add them to your Collective’s balance manually.

If an expense for your project is paid outside of the platform, we will manually deduct the amount from your Collective’s balance.