⚠️ This draft document is not in effect yet.
⚠️ This draft document is not in effect yet.
Terms of fiscal sponsorship
The Software Underground is a Fiscal Host on the Open Collective platform. This program allows the Software Underground to support projects, known as Collectives, in its community by providing a financial home. This enables them to accept and disburse money without having to create their own legal entity and bank account.
Some examples of Collectives include:
Open source software projects.
Open access content projects, such as book or poster creation.
Community events such as conferences, hackathons and sprints.
Meetup groups and informal gatherings.
Through the Open Collective platform, Collectives can keep transparent financial records and be accountable to funders while staying fully focused on carrying out their activities.
The terms of the fiscal sponsorship are described below in the legally binding Fiscal Sponsorship Agreement. If you would like to have the Software Underground as a Fiscal Host, please read the agreement carefully, then visit here to apply.
Fiscal Sponsorship Agreement
This Fiscal Sponsorship Agreement sets out how Software Underground will provide an umbrella structure under which to operate your Collective, and the ways we will interact.
Parties. These are the terms of the relationship entered into between:
Software Underground (Canada Corporation No. 1203054-3) ("Us" or "Software Underground"); and
the Collective, which has agreed to these terms and conditions ("You" or "the Collective").
This agreement ("Agreement") is entered into with effect from the date ("Effective Date") that you confirm, by ticking the relevant box, that you have read and agree to these terms and that Software Underground has accepted your request to include your Collective as part of Software Underground and provide support to You for the purposes you described in your application.
Recitals. The parties enter into this Agreement with reference to the following facts:
Software Underground is a global non-profit organization, incorporated in Canada.
Software Underground’s mission is to provide technical and professional development opportunities to the global community of earth scientists and engineers who program computers in the course of their work, and to promote the use of open source digital technology in the exploitation of natural resources and investigation of the earth ("Software Underground's Mission").
The Collective, with its stated mission, meets the criteria for engaging Software Underground as a fiscal sponsor as according to Exhibit A ("Protocols"). The Collective agrees to continue to align with Software Underground's Mission in the future.
The Collective and Software Underground mutually desire to enter a fiscal sponsorship relationship as according to the terms set out in this Agreement.
The parties agree that Software Underground shall:
receive funds for the Collective ("Funds") to be held by Software Underground; and
after discussing with the Collective, control these funds for the use of the Collective, less any administrative charges, interest, and expenses.
Term. This Agreement shall commence on the Effective Date, and will continue unless and until terminated under clause 10 of this Agreement.
Relationship. Nothing in this Agreement means that the Collective or its members and/or agents is an agent or legal representative of Software Underground for any purpose whatsoever except as provided in this Agreement.
Protocols. Software Underground has established certain protocols set out in Exhibit A. This sets out how Software Underground shall manage and operate and deal with any funds. Software Underground hereby provides the Protocols to the Collective and may from time to time and in its sole discretion update the Protocols to assist Software Underground in performing its obligations effectively.
Funds. You may solicit unconditional gifts, contributions, sponsorships, and grants to Software Underground for the purpose of the Collective, where the payer is not receiving any specific good or service in return.
The Collective understands, acknowledges and agrees that Software Underground is not a registered charity or donee organisation, and that such funds collected by Software Underground for the Collective will not have donation tax receipts issued for them and will not entitle the giver to a donation tax credit or a tax deduction.
If the Collective wishes to accept conditional payments, where the payer receives a specific good or service in return, you must provide notice in writing to Software Underground so that we can ensure any applicable Harmonized Sales Tax (HST) or other taxes are applied.
Third party agreements. If You want to enter into any agreement or obligation with a donor, sponsor, vendor or other third party, to provide or receive services beyond simply receiving a donor's financial contributions, you must first provide notice of the specific details to Us and obtain Software Underground prior written consent, as these agreements or obligations will legally be between Software Underground and the third party.
Intellectual property. Any and all tangible or intangible property, including intellectual property, such as copyrights of the Collective, belong to You. Furthermore, You represent that you have the power and right to advance the Collective. We acknowledge and agree that any trademarks, trade names, artwork, designs, logos, copy, and all other intellectual property provided to Software Underground by the Collective or its agents (for example, to be put on websites) belongs to the Collective and not to Us. For the avoidance of doubt, you should register ownership in the name of an individual or individuals associated with the Collective rather than in the name of Software Underground.
The Collective. Software Underground will receive funds earmarked for support of the Collective, and make disbursements for expenses incurred in furtherance of the Collective. Beginning on the Effective Date, Software Underground will place all such revenues received by Software Underground and identified with the Collective into an account to be used for the benefit of the Collective's mission as that mission periodically may be defined by the Collective with the approval of Software Underground. Software Underground will exercise full control over the Collective's financial administration, management, and disbursement of the Fund.
For the avoidance of doubt, the parties note that all money will be reported as the income of Software Underground, for both tax purposes and for purposes of Software Underground financial statements. Accordingly, Software Underground is responsible for the processing and deposit in the Fund of all monies received for the Collective.
We will consult together around any payments to be made out to cover expenses of the Collective as detailed in the Protocols.
Termination. Either Software Underground or the Collective may terminate this Agreement on 30 days' written notice to the other party.
Upon a termination notice being given, the Collective will notify Software Underground of how the funds will be dealt with, from the following three options:
submit a request that the balance is paid out as a legitimate Collective expense (submitted and processed as per the Protocols);
donate the funds of the Collective to another Collective hosted by Software Underground; or
donate the funds to Software Underground.
If no notice is provided that elects one of these options by the Collective within the 30 days' written notice period, then the default is for the funds to be donated to Software Underground (the third option).
In addition, if no member of the Collective has responded to a request for termination instructions by Software Underground for a period of 12 months then the funds will automatically be donated to Software Underground.
Notice. Each notice under this Agreement shall be in writing and delivered personally or sent by post or email to the person at the address or email notified in writing from time to time.
A notice is deemed to be received:
if delivered personally, when delivered;
if posted, 14 business days after posting; or
if sent by email, when actually received.
Disputes. Before taking any legal action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
If there is a dispute between the parties in relation to this Agreement, either party may give the other party notice of the dispute.
Within 14 business days of receipt of the notice of dispute, the parties shall meet (in person or online) to endeavour to resolve the dispute.
If the dispute is not resolved within 21 business days of receipt of the notice of the dispute, either party may by notice to the other party refer the dispute to mediation, which will take place in person or online, with each party paying half of the cost of the mediation.
While any dispute remains unresolved, each party shall continue to perform this Agreement to the extent practicable, but without prejudice to their respective rights and remedies.
Liabilities & indemnification. You are responsible for all activities of the Collective, including any financial or other liabilities, and you indemnify and hold harmless Software Underground and its representatives from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney's fees) resulting from your performance of your obligations contained in this Agreement.
You also indemnify Software Underground from any loss or liability resulting from 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 your activities or the Collective.
You also indemnity Software Underground in relation to any claims from third parties that you have violated any intellectual property laws.
Force majeure. Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by force majeure (which are events beyond the reasonable control of the affected party, such as a pandemic or natural disaster), provided that the affected party:
immediately notifies the other party and provides full information about the force majeure;
uses best efforts to overcome the force majeure; and
continues to perform its obligations to the extent practicable.
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
Jurisdiction. This Agreement shall be construed and enforced in accordance with the laws of Nova Scotia and Canada as they apply in Nova Scotia.
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 be amended by Software Underground from time to time and in its sole discretion by posting new versions of these terms on its website and notifying You. By continuing to use the services of Software Underground you will confirm that you agree to the modified terms.
Miscellaneous. If there is any inconsistency between these terms and any other document submitted by You or any other arrangement with Us, these terms prevail unless otherwise agreed by Us in writing.
To waive a right under this Agreement, that waiver must be in writing and signed by the waiving party.
The parties are independent, and this Agreement does not create any partnership, agency or employment relationship between them.
If any provision of these terms and conditions is held by any court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining provisions.
Exhibit A: Protocols
The following are the policies and processes of Software Underground's fiscal sponsorship.
Criteria: The Collective will provide evidence and Software Underground will confirm that the Collective has met the criteria for engaging Software Underground as a fiscal sponsor, being that the Collective has a mission that is value-aligned with Software Underground's mission and carry out activities that create positive impact in the community we share.
Software Underground fees and expenses: The Collective will be required to cover any expenses Software Underground incurred on the Collective's behalf as a result of this Agreement. The Collective is responsible to pay from the Fund the Fees that consist of:
5% of all of the funds deposited into the Fund, regardless of source, for purposes of becoming a Collective of Software Underground and maintaining such membership; or
any specific amounts agreed between us in writing (due, for example, to there being a specific sum which Software Underground agrees to look after for a specific fee); and
all interest earned on the Fund which will be retained in Software Underground's general fund.
Payment processor expenses: In addition to the Fees, the Collective is responsible for any merchant account credit card processing expenses incurred by Software Underground as a result of administration of the Fund, which are directly related to the Collective's purpose. Such expenses shall be pulled directly from the Fund by Software Underground.
Platform: Upon execution of this Agreement, the Collective will be featured on Open Collective, an accounting and crowdfunding platform (the "Platform"), specifically on Software Underground’s page.
Software Underground will set the Collective up on the Platform such that the Collective will have its own page that tracks, in total transparency, the funds that it raises and the expenses it incurs in relation to the Collective.
The Collective's page on the Platform will be linked to Software Underground's Stripe account and bank account, so that Software Underground has control over the funds received and disbursed under the Platform for purposes of the Collective. The Platform thus serves as a fundraising avenue for the Collective, enabling it to raise funds and be reimbursed for expenses incurred in relation to the Collective.
The Platform makes the revenue and expenses of the Collective available to the public through a transparent ledger.
Disbursements: In order to receive a disbursement from the funds raised to cover expenses incurred in furtherance of the Collective, those seeking payment must submit receipts or invoices onto the Platform for review by representatives of the board of the Software Underground, via the "Submit Expense" feature on the Collective's page.
Upon Software Underground’s receipt of receipts or invoices, it will review all documentation to ensure the expenses incurred are valid. Upon approval by the Software Underground representatives, Software Underground will reimburse those expenses to the payee through the Platform using bank transfer or another mutually agreed payment option. Each time Software Underground reimburses the Collective’s members for such expenses, the funds allocated to the Collective on the Platform will automatically decrease by the amount reimbursed.
Funds received & expenses paid outside platform: In the event that the Collective receives funding outside of the Platform (that which does not go automatically and directly into the Fund), Software Underground will use a feature enabled on the Platform to 'Manually Add Funds' to the Collective's balance. This means that Software Underground will assign the funds received in the Fund destined to the Collective, thus increasing its budget. In the same fashion, if an expense is paid outside of the Platform by the Collective, because, for example, the recipient is not able to be paid by one of the available methods, then Software Underground will use the 'Mark as Paid' feature on the Platform, which allows Software Underground 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.
The Software Underground acknowledges the Hypha Coop as a model for its fiscal sponsorship agreement. This agreement is licensed CC BY-SA.