Changeset - 9c4697993e9b
[Not reviewed]
0 1 2
Bradley Kuhn (bkuhn) - 9 years ago 2012-09-03 20:56:37
bkuhn@ebb.org
FSA template is now publicly available online.
This is version is r6334 from Conservancy's internal repository.
FAQ has been appropriately updated to link to this.
3 files changed with 378 insertions and 8 deletions:
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www/conservancy/static/members/apply/ConservancyFSATemplate.pdf
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new file 100644
 
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www/conservancy/static/members/apply/conservancy-fsa-template.tex
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\documentclass[letterpaper,12pt]{article}
 
\usepackage{draftcopy}
 
\usepackage{enumitem}
 
\usepackage{parskip}
 
\usepackage{fancyhdr}
 
\usepackage[verbose, twoside, dvips,
 
              paperwidth=8.5in, paperheight=11in,
 
              left=1in, right=1in, top=1.25in, bottom=.75in,
 
           ]{geometry}
 

	
 
\pagestyle{fancy}
 

	
 
\lhead{}
 
\rhead{}
 
\chead{}
 

	
 
\cfoot{\thepage}
 
\lfoot{}
 
\rfoot{Initials: \rule{0.15\textwidth}{0.2mm}}
 
\renewcommand{\headrulewidth}{0pt}
 
\renewcommand{\footrulewidth}{0pt}
 

	
 
\begin{document}
 

	
 
\begin{center}
 
\textsc{\Huge Fiscal Sponsorship Agreement}{\Huge {} } 
 
\par\end{center}
 

	
 
\bigskip{}
 

	
 

	
 
This Agreement is made by and between The Software Freedom Conservancy
 
(``Conservancy'') and FIXME-CONTRIBUTOR-NAMES (the ``FIXME-SIGNATORIES'')
 
on behalf of the project known as FIXME (the ``Project'').  Conservancy
 
is a New York nonprofit public benefit corporation located in Brooklyn,
 
New York, which has received recognition of exemption from federal
 
income tax under Section 501(c)(3) of the Internal Revenue Code (IRC)
 
and classification as a public charity under IRC Sections 509(a)(1)
 
and 170(b)(1)(A)(vi).
 

	
 
\textsc{Whereas:}
 

	
 
\begin{enumerate}[label=\Alph*.,ref=\S \Alph*]
 
\item Conservancy's organizational mission and charitable goal is to promote,
 
improve, develop and defend Free, Libre, and Open Source Software
 
projects. 
 
\item The purpose of the Project is to produce, distribute, document, and
 
improve software and/or documentation that can be freely copied, modified and redistributed,
 
and for which modified versions can also be redistributed (``Free Software''),
 
and to facilitate and organize its production, improvement and ease
 
of use. 
 
\item Conservancy desires to act as the fiscal sponsor of the Project beginning
 
on the Effective Date (as defined below) to assist the Project in
 
accomplishing its purpose, which Conservancy has determined will further
 
Conservancy's charitable goals. The FIXME-SIGNATORIES desire to manage
 
the Project under the sponsorship of Conservancy. 
 
\item Conservancy's Board of Directors has approved the establishment
 
of a fund to receive donations of cash and other property earmarked
 
for support of the Project and to make disbursements in furtherance
 
of the Project's mission (the ``Project Fund''). Currently, the
 
principal office of the Project is located at: [FIXME: MAILING ADDRESS]. 
 
\end{enumerate}
 
\medskip{}
 

	
 

	
 
\textsc{Now, therefore, the parties hereby agree as follows:}
 

	
 
\begin{enumerate}[label=\arabic*.,ref=\S~\arabic*]
 
\item \textbf{Term of Agreement}. As of the Effective Date, the Project
 
joins Conservancy, which relationship will continue unless and until
 
terminated as set forth in \ref{Termination}. 
 
\item \textbf{Project Management and Activities}.
 

	
 

	
 
\begin{enumerate}[label=\alph*.,ref=\theenumi(\alph*)]
 
\item \textbf{The FIXME-LEADERSHIP-BODY-NAME Will Manage the Project}. \label{ProjectManagement}
 
Authority to manage the technical, artistic and philanthropic direction
 
of the Project and the program activities of the Project is delegated
 
to the FIXME-LEADERSHIP-BODY-NAME as defined in \ref{Representation},
 
subject at all times to the direction and control of Conservancy's
 
Board of Directors. Conservancy will only intervene in the program
 
activities to the extent the Project is not in compliance with \ref{FreeSoftware}
 
or \ref{CharitablePurpose} of this Agreement. 
 
\item \textbf{The Project Will Be Free Software}. \label{FreeSoftware}
 
Conservancy and the FIXME-LEADERSHIP-BODY-NAME agree that any and all software
 
and/or documentation distributed by the Project will be distributed solely as Free Software.
 
Conservancy retains the sole right to determine whether Project's
 
software and/or documentation constitutes Free Software (as defined herein).
 
\item \textbf{Ultimate Responsibility of Project}. Subject to \ref{ProjectManagement}
 
of this Agreement, all community programs, public information work,
 
fundraising events, processing and acknowledgment of cash and non-cash
 
revenue items, accounts payable and receivable, negotiation of leases
 
and contracts, disbursement of Project funds (including grants), and
 
other activities planned by the Project shall be the ultimate responsibility
 
of Conservancy and shall be conducted in the name of Conservancy,
 
beginning on the Effective Date. 
 
\item \textbf{Project Not An Agent Of Conservancy}. The FIXME-SIGNATORIES
 
hereby acknowledge that the Project and the FIXME-LEADERSHIP-BODY-NAME
 
do not and shall not act as an agent for Conservancy unless specifically
 
authorized in writing by Conservancy to do so. 
 
\end{enumerate}
 
\item \textbf{Fees}. The Project agrees to donate ten percent
 
(10\%) of its gross revenue (including, but not necessarily limited
 
to, all income and donations) to Conservancy for its general operations.
 

	
 

	
 
Notwithstanding the above, the Project agrees that should Conservancy
 
be required to pay any taxes (including but not limited to sales taxes
 
and unrelated business taxable income) as the result of any activity
 
of the Project and/or activities undertaken by Conservancy on the
 
Project's behalf, such taxes shall be deducted from the Project Fund.
 

	
 

	
 
Conservancy will monitor any unrelated business taxable income and
 
may require the Project to cease activities generating such income
 
if the overall amounts exceed amounts permissible or prudent for Conservancy,
 
given Conservancy's tax exempt status.
 

	
 
\item \textbf{Project Fund/Variance Power}. Beginning on the Effective Date,
 
Conservancy shall place all gifts, grants, contributions and other
 
revenues received by Conservancy and identified with the Project into
 
a Project Fund to be used for the sole benefit of the Project's mission
 
as that mission may be defined by the FIXME-LEADERSHIP-BODY-NAME from
 
time to time with the approval of Conservancy. Conservancy retains
 
the unilateral right to spend such funds so as to accomplish the purposes
 
of the Project as nearly as possible within Conservancy's sole judgment.
 
Conservancy agrees to make a good faith effort to consider any expressed
 
donor intent in making determinations on the expenditure of that donor's
 
gift; however, the Parties acknowledge that expressions of donor intent
 
are not legally binding on Conservancy. The parties agree that all
 
money, and the fair market value of all property, deposited in the
 
Project Fund be reported as the income of Conservancy, for both tax
 
purposes and for purposes of Conservancy's financial statements. It
 
is the intent of the parties that this Agreement be interpreted to
 
provide Conservancy with variance powers necessary to enable Conservancy
 
to treat the Project Fund as Conservancy's asset in accordance with
 
Financial Accounting Statement No. 136 issued by the Financial Accounting
 
Standards Board, while this Agreement is in effect. 
 
\item \textbf{Project Fund Management / Performance of Charitable Purposes}.
 
\label{CharitablePurpose} All of the assets received by Conservancy
 
under the terms of this Agreement shall be devoted to the purposes
 
of the Project, within the tax-exempt purposes of Conservancy. The
 
Project agrees not to use its funds or operate in any way which would
 
jeopardize the tax-exempt status of Conservancy. No item of revenue
 
shall be earmarked for use in any attempt to influence legislation
 
within the meaning of IRC Section 501(c)(3) and no agreement, oral
 
or written, to that effect shall be made between Conservancy and any
 
revenue source. Conservancy shall not use any portion of the assets
 
to participate or intervene in any political campaign on behalf or
 
in opposition to any candidate for public office, to induce or encourage
 
violations of law or public policy, to cause any private inurement
 
or improper private benefit to occur, nor to take any other action
 
inconsistent with IRC Section 501(c)(3). 
 

	
 
\item \textbf{Representation of the Project in Conservancy}. \label{Representation}The
 
FIXME-SIGNATORIES, each a signatory hereto, hereby establish and comprise
 
the initial members of the FIXME-LEADERSHIP-BODY-NAME
 
to represent the Project in its official communication with Conservancy.
 
The FIXME-SIGNATORIES hereby acknowledge that the FIXME-LEADERSHIP-BODY-NAME
 
will be subject to all terms of this Agreement.
 
On the Effective Date, the FIXME-SIGNATORIES hereby transfer all
 
rights, obligations and privileges of this Agreement over to the
 
FIXME-LEADERSHIP-BODY-NAME.
 

	
 
[FIXME: Note: This section should describe the way in which the
 
Project wishes to interface with Conservancy; including who has
 
authority to communicate with Conservancy regarding the Project
 
and what is required in order for Conservancy to act on behalf
 
of the Project. For example, all of the Contributors confirm their
 
approval of a certain action, or can any one of the Contributors instruct
 
Conservancy to take a certain action. Also, the Contributors may
 
want to identify certain other individuals that have the power to
 
represent the Project. Here a few samples of how projects have handled
 
this clause in the other projects:
 

	
 
\begin{itemize}
 
\item \textbf{Simple Self-Perpetuating Committee}. The FIXME-SIGNATORIES,
 
each a signatory hereto, shall initially [FIXME: form or comprise]
 
the FIXME-LEADERSHIP-BODY-NAME as a Project Committee (``Committee'')
 
to represent the Project in its official communication with Conservancy.
 
Existing Project Committee Members (``Members'') can be removed
 
from and new Members can be added to the Committee by simple majority
 
vote of the existing Committee; however, three (3) shall be the mandatory
 
minimum number of Members. All decisions of the Committee shall be
 
made by simple majority. The Committee shall appoint, by majority
 
vote, one Member as its ``Representative'' to communicate all Project
 
decisions to Conservancy.
 

	
 

	
 
The Representative shall promptly inform Conservancy of changes in
 
the Committee composition and of contact information for all Members.
 
If Conservancy is unable, after all reasonable efforts, to contact
 
a majority of the Members for a period of sixty (60) days, or if the
 
minimum number of Members is fewer than three for a period of at least
 
sixty days, Conservancy may unilaterally appoint new Members from
 
the Project community to replace any unreachable Members and/or to
 
increase the Committee composition to three Members.
 

	
 
\item \textbf{Self-Perpetuating Committee, w/ avoiding employees of same
 
company serving together}. The FIXME-SIGNATORIES, each a signatory
 
hereto, shall initially [FIXME: form or comprise] the FIXME-LEADERSHIP-BODY-NAME
 
as a Project Committee (``Committee'') to represent the Project
 
in its official communication with Conservancy. Existing Project
 
Committee Members (``Members'') can be removed from and new Members
 
can be added to the Committee by simple majority vote of the existing
 
Committee; however, three (3) (the ``Minimum'') shall be the mandatory
 
minimum number of Members.
 

	
 

	
 
For purposes of this Agreement, a Member is ``Employed'' by an Entity
 
if the Member is compensated for more than thirty-two (32) hours of
 
work per week by such Entity for a continuous period of more than
 
sixty (60) days. No more than one Member may be Employed by the same
 
Entity.
 

	
 

	
 
Should two (2) or more Members be Employed by the same Entity at any
 
time (e.g., if an existing Member changes employers while a Member),
 
Members Employed by the same Entity must immediately resign in succession
 
until only one (1) of them remains on the Committee. Should voluntarily
 
resignations fail to yield the aforementioned result after sixty (60)
 
days, the Members Sharing an Employer shall be removed by Conservancy
 
from the Committee in order of decreasing seniority. Seniority shall
 
be determined by length of service by the Member on the Committee,
 
including all historical periods of non-contiguous service.
 

	
 

	
 
All decisions of the Committee shall be made by simple majority. The
 
Committee shall appoint, by majority vote, one Member as its Representative
 
to communicate all Project decisions to Conservancy. The Representative
 
shall promptly inform Conservancy of changes in the Committee composition
 
and of contact information for all Members. If Conservancy is unable,
 
after all reasonable efforts, to contact a majority of the Members
 
for a period of sixty (60) days, or if the number of Members is fewer
 
than the Minimum for a period of at least sixty days, Conservancy
 
may, after at least thirty days notice to Project, unilaterally appoint
 
new Members from the Project community to replace any unreachable
 
Members and/or to increase the Committee composition to the required
 
Minimum.
 

	
 
\item \textbf{An Elected Oversight Committee.} The FIXME-SIGNATORIES, each
 
a signatory hereto, shall supervise the election of a Project Oversight
 
Committee to represent the Project in its official capacity with the
 
Conservancy. There shall be seven Project Oversight Committee members,
 
elected by the community members of the Project. The list of community
 
members with voting rights (``Voting Membership'') is maintained
 
by the community and is available on request. The criterion for Voting
 
Membership is to have demonstrated an interest in the future of the
 
Project. An request for addition to the Voting Membership list can
 
be made by contacting the Election Team via the community mailing
 
list, and requesting the addition. Such requests must be endorsed
 
by at least one Voting Member.
 

	
 

	
 
The Project Oversight Committee may, by majority vote, revise the
 
criteria for Voting Membership and shall promptly notify Conservancy
 
of any such revisions.
 

	
 
\end{itemize}
 

	
 
Note again that the above are merely examples, not a list of options.
 
Conservancy's goal is to draft the Representation section to match
 
the existing and natural leadership structure of the Project, so each
 
project usually has a uniquely worded Representation section. ]
 

	
 
\item \textbf{Outstanding Liabilities}. The FIXME-SIGNATORIES represent
 
that any liabilities that may be outstanding in connection with the
 
Project have been disclosed to Conservancy. 
 
\item \textbf{Termination}. \label{Termination} The FIXME-LEADERSHIP-BODY-NAME or Conservancy
 
may terminate this Agreement at any time subject to the following
 
understandings:
 

	
 

	
 
\begin{enumerate}[label=\alph*.,ref=\theenumi(\arabic*)]
 

	
 
\item \textbf{Notice and Successor Search}. Either Conservancy or the FIXME-LEADERSHIP-BODY-NAME
 
may terminate this Agreement on sixty (60) days' written notice to
 
the other Party, so long as a Successor can be found that meets the
 
following requirements (the ``Successor has Qualified''):
 

	
 

	
 
    \begin{enumerate}[label=\roman*.,ref=\theenumi(\alph{enumii})(\roman*)]
 
\item the Successor is another nonprofit corporation which is tax-exempt
 
under IRC Section 501(c)(3), 
 
\item the Successor is not classified as a private foundation under Section
 
509(a), 
 
\item the Successor is willing and able to sponsor the Project, and, 
 
\item the Successor has (a) communicated its willingness to sponsor the
 
  Project in writing to Conservancy and (b) sent a copy of its 501(c)(3) determination letter to Conservancy, and, 
 
\item the Successor is approved in writing by both Parties by the end of
 
the 60-day period, such approval not to be unreasonably withheld. 
 
\end{enumerate}
 
\item \textbf{Additional Search Periods}. If the parties cannot agree on
 
a Successor to sponsor the Project, the FIXME-LEADERSHIP-BODY-NAME
 
shall have an additional 60 days to find a Successor willing and able
 
to sponsor the Project. Any subsequent search periods of any length
 
shall only be granted at Conservancy's written permission. 
 
\item \textbf{Transfer to a Successor}. If a Successor has Qualified, the balance
 
of assets in the Project Fund, together with any other assets held
 
or liabilities incurred by Conservancy in connection with the
 
Project, shall be transferred to the Successor within thirty (30)
 
days of the approval of the Successor in writing by both Parties or
 
any extension thereof, subject to the approval of any third parties
 
that may be required.
 
\item \textbf{Termination Without a Successor}. If no Successor is found,
 
Conservancy may dispose of the Project assets and liabilities
 
in any manner consistent with applicable tax and charitable trust
 
laws. 
 
\item \textbf{FIXME-SIGNATORIES' Right to Terminate.} 
 
The FIXME-SIGNATORIES hereby acknowledge that they will relinquish any
 
       rights to terminate separate from the FIXME-LEADERSHIP-BODY-NAME as
 
       of the Effective Date.
 
\end{enumerate}
 
\item \textbf{Miscellaneous}. Each provision of this Agreement shall be
 
separately enforceable, and the invalidity of one provision shall
 
not affect the validity or enforceability of any other provision.
 
This Agreement shall be interpreted and construed in accordance with
 
the laws of the State of New York. This Agreement constitutes the
 
only agreement, and supersedes all prior agreements and understandings,
 
both written and oral, among the parties with respect to the subject
 
matter hereof. 
 
\item \textbf{Amendments. }This Agreement may not be amended or modified,
 
except in writing and signed by both Conservancy and the entirety of FIXME-LEADERSHIP-BODY-NAME. 
 
\item \textbf{Counterparts / Facsimile}. This Agreement may be executed
 
in two or more counterparts, each of which shall constitute an original,
 
but all of which, when together, shall constitute but one and the
 
same instrument, and shall become effective when one or more counterparts
 
have been signed by each Party hereto and delivered to the other Party.
 
In lieu of the original, a facsimile transmission or copy of the original
 
shall be as effective and enforceable as the original. 
 
\end{enumerate}
 
\vfill{}
 

	
 

	
 
\textsc{In witness whereof}, the parties have executed this Fiscal
 
Sponsorship Agreement effective on the FIXME day of FIXME, FIXME (the
 
``Effective Date'').
 

	
 
\vspace{3em}
 

	
 

	
 
By: \hspace{0.95em}\rule{0.50\textwidth}{0.2mm} \hfill{}Date: \rule{0.25\textwidth}{0.2mm}
 

	
 
\hspace{2.5em} \textsc{The Software Freedom Conservancy, Inc. }
 

	
 
\hspace{2.5em} Bradley M. Kuhn
 

	
 
\hspace{2.5em} Title: Executive Director \\[6ex]
 

	
 
\vspace{2ex}
 

	
 

	
 
By: \hspace{0.95em}\rule{0.50\textwidth}{0.2mm} \hfill{}Date: \rule{0.25\textwidth}{0.2mm}
 

	
 
\hspace{2.5em} [FIXME-CONTRIBUTOR]
 

	
 
\vspace{2ex}
 

	
 

	
 
By: \hspace{0.95em}\rule{0.50\textwidth}{0.2mm} \hfill{}Date: \rule{0.25\textwidth}{0.2mm}
 

	
 
\hspace{2.5em} [FIXME-CONTRIBUTOR] 
 
\end{document}
www/conservancy/static/members/apply/index.html
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@@ -129,14 +129,21 @@
 

	
 
<h2>What will the project leaders have to agree to if our project joins?</h2>
 

	
 
<p>Once you're offered membership, we'll send you a draft fiscal
 
  sponsorship agreement.  These aren't secret documents and many of our
 
  member projects have even chosen to put theirs online.  However, we wait
 
  to send a draft of this document until the application process is
 
  complete, as we often tailor and modify the agreements based on
 
  individual project needs.  This is painstaking work, and it's better to
 
  complete that work after both Conservancy and the project are quite sure
 
  that they both want the project to join Conservancy.</p>
 
<p>Once you're offered membership, Conservancy will send you a draft
 
  fiscal sponsorship agreement (FSA).  A template
 
  of <a href="/members/apply/ConservancyFSATemplate.pdf">Conservancy's FSA
 
  is available in PDF</a> (and
 
  in <a href="/members/apply/conservancy-fsa-template.tex">LaTeX</a>).
 
  Please note that the preceding documents are <strong>only
 
  templates</strong>.  Please do not try to fill one out and send it to
 
  Conservancy.  The final FSA between Conservancy and your project needs
 
  to be negotiated between us, and as can been seen in the template, the
 
  Representation section needs substantial work.  If your project is
 
  offered membership, Conservancy will work with you adapt the FSA
 
  template to suit the needs and specific circumstances of your project.
 
  This is painstaking work, and it's better to complete that work after
 
  both Conservancy and the project are quite sure that they both want the
 
  project to join Conservancy.</p>
 

	
 

	
 
<h2>If my project joins the Conservancy, how will it change?</h2>
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