380 lines
18 KiB
TeX
380 lines
18 KiB
TeX
\documentclass[letterpaper,12pt]{article}
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\usepackage{draftcopy}
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\usepackage{enumitem}
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\usepackage{parskip}
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\usepackage{fancyhdr}
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\usepackage{xspace}
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\usepackage[verbose, twoside, dvips,
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paperwidth=8.5in, paperheight=11in,
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left=1in, right=1in, top=1.25in, bottom=.75in,
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]{geometry}
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\pagestyle{fancy}
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\lhead{}
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\rhead{}
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\chead{}
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\cfoot{\thepage}
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\lfoot{}
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\rfoot{Initials: \rule{0.15\textwidth}{0.2mm}}
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\renewcommand{\headrulewidth}{0pt}
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\renewcommand{\footrulewidth}{0pt}
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\newcommand{\projectname}{FIXME-PROJECT-NAME\xspace}
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\newcommand{\signatories}{FIXME-SIGNATORIES\xspace}
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\newcommand{\leadershipbody}{FIXME-LEADERSHIP-BODY-NAME\xspace}
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\newcommand{\signature}[3]{
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\vspace{2ex}
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By: \hspace{0.95em}\rule{0.50\textwidth}{0.2mm} \hfill{}Date: \rule{0.25\textwidth}{0.2mm}
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\if\relax\detokenize{#1}\relax
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\else
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\hspace{2.5em} \textsc{#1}
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\fi
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\if\relax\detokenize{#2}\relax
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\else
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\hspace{2.5em} #2
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\fi
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\if\relax\detokenize{#3}\relax
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\else
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\hspace{2.5em} #3
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\fi
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\vspace{6ex}
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}
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\begin{document}
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\begin{center}
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\textsc{\Huge Fiscal Sponsorship Agreement}{\Huge {} }
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\par\end{center}
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\bigskip{}
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This Agreement is made by and between Software Freedom Conservancy
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(``Conservancy'') and FIXME-CONTRIBUTOR-NAMES (the ``\signatories'')
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on behalf of the project known as \projectname (the ``Project'') (each, a
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``Party''; together, ``the Parties''). Conservancy is a New York nonprofit
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public benefit corporation located in Brooklyn, New York, which has received
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recognition of exemption from federal income tax under Section 501(c)(3) of
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the Internal Revenue Code (IRC) and classification as a public charity under
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IRC Sections 509(a)(1) and 170(b)(1)(A)(vi).
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\textsc{Whereas:}
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\begin{enumerate}[label=\Alph*.,ref=\S \Alph*]
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\item Conservancy's organizational mission and charitable goal is to promote,
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improve, develop and defend Free, Libre, and Open Source Software
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projects.
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\item The purpose of the Project is to produce, distribute, document, and
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improve software and/or documentation that can be freely copied, modified and redistributed,
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and for which modified versions can also be redistributed (``Free Software''),
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and to facilitate and organize its production, improvement and ease
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of use.
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\item Conservancy desires to act as the fiscal sponsor of the Project beginning
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on the Effective Date (as defined below) to assist the Project in
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accomplishing its purpose, which Conservancy has determined will further
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Conservancy's charitable goals. The \signatories desire to manage
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the Project under the sponsorship of Conservancy.
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\item Conservancy's Board of Directors has approved the establishment
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of a fund to receive donations of cash and other property earmarked
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for support of the Project and to make disbursements in furtherance
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of the Project's mission (the ``Project Fund''). Currently, the
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principal office of the Project is located at: [FIXME: MAILING ADDRESS].
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\end{enumerate}
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\medskip{}
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\textsc{Now, therefore, the Parties hereby agree as follows:}
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\begin{enumerate}[label=\arabic*.,ref=\S~\arabic*]
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\item \textbf{Term of Agreement}. As of the Effective Date, the Project
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joins Conservancy, which relationship will continue unless and until
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terminated as set forth in \ref{Termination}.
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\item \textbf{Project Management and Activities}.
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\begin{enumerate}[label=\alph*.,ref=\theenumi(\alph*)]
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\item \textbf{The \leadershipbody Will Manage the Project}. \label{ProjectManagement}
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Authority to manage the technical, artistic and philanthropic direction
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of the Project and the program activities of the Project is delegated
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to the \leadershipbody as defined in \ref{Representation},
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subject at all times to the direction and control of Conservancy's
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Board of Directors. Conservancy will only intervene in the program
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activities to the extent the Project is not in compliance with \ref{FreeSoftware}
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or \ref{CharitablePurpose} of this Agreement.
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\item \textbf{The Project Will Be Free Software}. \label{FreeSoftware}
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Conservancy and the \leadershipbody agree that any and all software
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and/or documentation distributed by the Project will be distributed solely as Free Software.
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Conservancy retains the sole right to determine whether the Project's
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software and/or documentation constitutes Free Software (as defined herein).
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\item \textbf{Ultimate Responsibility of Project}. Subject to \ref{ProjectManagement}
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of this Agreement, all community programs, public information work,
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fundraising events, processing and acknowledgment of cash and non-cash
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revenue items, accounts payable and receivable, negotiation of leases
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and contracts, disbursement of Project funds (including grants), and
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other activities planned by the Project shall be the ultimate responsibility
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of Conservancy and shall be conducted in the name of Conservancy,
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beginning on the Effective Date.
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\item \textbf{Project Not An Agent Of Conservancy}. The \signatories
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hereby acknowledge that the Project and the \leadershipbody
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do not and shall not act as an agent for Conservancy unless specifically
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authorized in writing by Conservancy to do so.
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\end{enumerate}
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\item \textbf{Fees}. The \signatories agree to donate ten percent
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(10\%) of the Project's gross revenue (including, but not necessarily limited
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to, all income and donations) to Conservancy for its general operations.
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Notwithstanding the above, the \signatories agree that should Conservancy
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be required to pay any taxes (including but not limited to sales taxes
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and unrelated business taxable income) as the result of any activity
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of the Project and/or activities undertaken by Conservancy on the
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Project's behalf, such taxes shall be deducted from the Project Fund.
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Conservancy will monitor any unrelated business taxable income and
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may require the Project to cease activities generating such income
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if the overall amounts exceed amounts permissible or prudent for Conservancy,
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given Conservancy's tax exempt status.
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\item \textbf{Project Fund/Variance Power}. Beginning on the Effective Date,
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Conservancy shall place all gifts, grants, contributions and other
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revenues received by Conservancy and identified with the Project into
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a Project Fund to be used for the sole benefit of the Project's mission
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as that mission may be defined by the \leadershipbody from
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time to time with the approval of Conservancy. Conservancy retains
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the unilateral right to spend such funds so as to accomplish the purposes
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of the Project as nearly as possible within Conservancy's sole judgment.
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Conservancy agrees to make a good faith effort to consider any expressed
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donor intent in making determinations on the expenditure of that donor's
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gift; however, the Parties acknowledge that expressions of donor intent
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are not legally binding on Conservancy. The Parties agree that all
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money, and the fair market value of all property, deposited in the
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Project Fund be reported as the income of Conservancy, for both tax
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purposes and for purposes of Conservancy's financial statements. It
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is the intent of the Parties that this Agreement be interpreted to
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provide Conservancy with variance powers necessary to enable Conservancy
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to treat the Project Fund as Conservancy's asset in accordance with
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Financial Accounting Statement No. 136 issued by the Financial Accounting
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Standards Board, while this Agreement is in effect.
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\item \textbf{Project Fund Management / Performance of Charitable Purposes}.
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\label{CharitablePurpose} All of the assets received by Conservancy
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under the terms of this Agreement shall be devoted to the purposes
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of the Project, within the tax-exempt purposes of Conservancy. The
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\signatories agree not to use its funds or operate in any way which would
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jeopardize the tax-exempt status of Conservancy. No item of revenue
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shall be earmarked for use in any attempt to influence legislation
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within the meaning of IRC Section 501(c)(3) and no agreement, oral
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or written, to that effect shall be made between Conservancy and any
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revenue source. Conservancy shall not use any portion of the assets
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to participate or intervene in any political campaign on behalf or
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in opposition to any candidate for public office, to induce or encourage
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violations of law or public policy, to cause any private inurement
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or improper private benefit to occur, nor to take any other action
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inconsistent with IRC Section 501(c)(3).
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\item \textbf{Representation of the Project in Conservancy}. \label{Representation}The
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\signatories, each a signatory hereto, hereby establish and comprise
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the initial members of the \leadershipbody
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to represent the Project in its official communication with Conservancy.
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The \signatories hereby acknowledge that the \leadershipbody
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will be subject to all terms of this Agreement.
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On the Effective Date, the \signatories hereby transfer all
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rights, obligations and privileges of this Agreement over to the
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\leadershipbody.
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[FIXME: Note: The rest of this section should describe the way in which the
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Project wishes to interface with Conservancy; including who has
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authority to communicate with Conservancy regarding the Project
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and what is required in order for Conservancy to act on behalf
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of the Project. For example, all of the Contributors confirm their
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approval of a certain action, or can any one of the Contributors instruct
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Conservancy to take a certain action. Also, the Contributors may
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want to identify certain other individuals that have the power to
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represent the Project. Here a few samples of how projects have handled
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this clause in the other projects:
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\begin{itemize}
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\item \textbf{Simple Self-Perpetuating Committee}. The \signatories,
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each a signatory hereto, shall initially [FIXME: form or comprise]
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the \leadershipbody as a Project Committee (``Committee'')
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to represent the Project in its official communication with Conservancy.
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Existing Project Committee Members (``Members'') can be removed
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from and new Members can be added to the Committee by simple majority
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vote of the existing Committee; however, three (3) shall be the mandatory
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minimum number of Members. All decisions of the Committee shall be
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made by simple majority. The Committee shall appoint, by majority
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vote, one Member as its ``Representative'' to communicate all Project
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decisions to Conservancy.
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The Representative shall promptly inform Conservancy of changes in
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the Committee composition and of contact information for all Members.
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If Conservancy is unable, after all reasonable efforts, to contact
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a majority of the Members for a period of sixty (60) days, or if the
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minimum number of Members is fewer than three for a period of at least
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sixty days, Conservancy may unilaterally appoint new Members from
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the Project community to replace any unreachable Members and/or to
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increase the Committee composition to three Members.
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\item \textbf{Self-Perpetuating Committee, w/ avoiding employees of same
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company serving together}. The \signatories, each a signatory
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hereto, shall initially [FIXME: form or comprise] the \leadershipbody
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as a Project Committee (``Committee'') to represent the Project
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in its official communication with Conservancy. Existing Project
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Committee Members (``Members'') can be removed from and new Members
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can be added to the Committee by simple majority vote of the existing
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Committee; however, three (3) (the ``Minimum'') shall be the mandatory
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minimum number of Members.
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For purposes of this Agreement, a Member is ``Employed'' by an Entity
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if the Member is compensated for more than thirty-two (32) hours of
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work per week by such Entity for a continuous period of more than
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sixty (60) days. No more than one Member may be Employed by the same
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Entity.
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Should two (2) or more Members be Employed by the same Entity at any
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time (e.g., if an existing Member changes employers while a Member),
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Members Employed by the same Entity must immediately resign in succession
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until only one (1) of them remains on the Committee. Should voluntarily
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resignations fail to yield the aforementioned result after sixty (60)
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days, the Members Sharing an Employer shall be removed by Conservancy
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from the Committee in order of decreasing seniority. Seniority shall
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be determined by length of service by the Member on the Committee,
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including all historical periods of non-contiguous service.
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All decisions of the Committee shall be made by simple majority. The
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Committee shall appoint, by majority vote, one Member as its Representative
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to communicate all Project decisions to Conservancy. The Representative
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shall promptly inform Conservancy of changes in the Committee composition
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and of contact information for all Members. If Conservancy is unable,
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after all reasonable efforts, to contact a majority of the Members
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for a period of sixty (60) days, or if the number of Members is fewer
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than the Minimum for a period of at least sixty days, Conservancy
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may, after at least thirty days notice to Project, unilaterally appoint
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new Members from the Project community to replace any unreachable
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Members and/or to increase the Committee composition to the required
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Minimum.
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\item \textbf{An Elected Oversight Committee.} The \signatories, each
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a signatory hereto, shall initially [FIXME: form or comprise] the
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\leadershipbody as a Project Committee (``Committee'') to
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represent the Project in its official communication with Conservancy. The
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Committee shall hereafter be elected by community members of the Project as
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designated by the Committee or a subcommittee of the Committee (the
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``Community Members'').
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The positions on the Committee will be on a two-year staggered basis
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([FIX-ME: some portion] of the initial board seats will be for one year).
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The members of the Committee may be removed from the position at any time
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by a majority vote of the Community Members. Upon the resignation or
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removal of a member of the Oversight Board, the Community Members shall
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elect a replacement Community Member to serve on the Committee.
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The Committee will elect a single individual to communicate with
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Conservancy (the ``Representative'') and shall notify Conservancy promptly
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following the election of a new Representative. The Representative will
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have the authority to instruct Conservancy on the Project's behalf on all
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matters.
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This section may be modified by a vote of at least $\frac{3}{4}$ths of the
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Community Members, with the consent of Conservancy, such consent not to be
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unreasonably withheld.
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\end{itemize}
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Note again that the above are merely examples, not a list of options.
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Conservancy's goal is to draft the Representation section to match
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the existing and natural leadership structure of the Project, so each
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project usually has a uniquely worded Representation section. ]
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\item \textbf{Outstanding Liabilities}. The \signatories represent
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that any liabilities that may be outstanding in connection with the
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Project have been disclosed to Conservancy.
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\item \textbf{Termination}. \label{Termination} The \leadershipbody or Conservancy
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may terminate this Agreement at any time subject to the following
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understandings:
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\begin{enumerate}[label=\alph*.,ref=\theenumi(\arabic*)]
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\item \textbf{Notice and Successor Search}. Either Conservancy or the \leadershipbody
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may terminate this Agreement on sixty (60) days' written notice (``the Notice Period'') to
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the other Party, so long as a Successor can be found that meets the
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following requirements (the ``Successor has Qualified''):
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\begin{enumerate}[label=\roman*.,ref=\theenumi(\alph{enumii})(\roman*)]
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\item the Successor is another nonprofit corporation which is tax-exempt
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under IRC Section 501(c)(3),
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\item the Successor is not classified as a private foundation under Section
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509(a),
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\item the Successor is willing and able to sponsor the Project, and,
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\item the Successor has (a) communicated its willingness to sponsor the
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Project in writing to Conservancy and (b) sent a copy of its 501(c)(3) determination letter to Conservancy, and,
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\item the Successor is approved in writing by both Parties by the end of
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the Notice Period, such approval not to be unreasonably withheld.
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\end{enumerate}
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\item \textbf{Additional Search Periods}. If the Parties cannot agree on
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a Successor to sponsor the Project, the \leadershipbody
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shall have an additional 60 days to find a Successor willing and able
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to sponsor the Project. Any subsequent search periods of any length
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shall only be granted at Conservancy's written permission.
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\item \textbf{Transfer to a Successor}. If a Successor has Qualified, the balance
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of assets in the Project Fund, together with any other assets held
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or liabilities incurred by Conservancy in connection with the
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Project, shall be transferred to the Successor within thirty (30)
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days of the approval of the Successor in writing by both Parties or
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any extension thereof, subject to the approval of any third parties
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that may be required.
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\item \textbf{Termination Without a Successor}. If no Successor is found,
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Conservancy may dispose of Project assets and liabilities
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in any manner consistent with applicable tax and charitable trust
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laws.
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\item \textbf{\signatories' Right to Terminate.}
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The \signatories hereby acknowledge that they will relinquish any
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rights to terminate separate from the \leadershipbody as
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of the Effective Date.
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\end{enumerate}
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\item \textbf{Miscellaneous}. Each provision of this Agreement shall be
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separately enforceable, and the invalidity of one provision shall
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not affect the validity or enforceability of any other provision.
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This Agreement shall be interpreted and construed in accordance with
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the laws of the State of New York. This Agreement constitutes the
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only agreement, and supersedes all prior agreements and understandings,
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both written and oral, among the Parties with respect to the subject
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matter hereof.
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\item \textbf{Amendments. }This Agreement may not be amended or modified,
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except in writing and signed by both Conservancy and the entirety of \leadershipbody.
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\item \textbf{Counterparts / Facsimile}. This Agreement may be executed
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in two or more counterparts, each of which shall constitute an original,
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but all of which, when together, shall constitute but one and the
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same instrument, and shall become effective when one or more counterparts
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have been signed by each Party hereto and delivered to the other Party.
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In lieu of the original, a facsimile transmission or copy of the original
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shall be as effective and enforceable as the original.
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\end{enumerate}
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\vfill{}
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\textsc{In witness whereof}, the Parties have executed this Fiscal
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Sponsorship Agreement effective on the FIXME day of FIXME, FIXME (the
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``Effective Date'').
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\vspace{3em}
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\signature{Software Freedom Conservancy, Inc.}{Bradley M. Kuhn}{Title: President}
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\signature{}{FIXME-CONTRIBUTOR}{}
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\signature{}{FIXME-CONTRIBUTOR}{}
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\signature{}{FIXME-CONTRIBUTOR}{}
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\end{document}
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