Terms of Hosting

Legal Agreement (official)

These are the basic Terms of Hosting of OPEN COLLECTIVE EUROPE ASBL, operating the Open Source Europe fiscal hosting programme (“the Association”). This Agreement enters into effect (“Effective Date”) upon acceptance of this Agreement when creating an initiative (“the Initiative”) and requesting to make use of the Association’s platform and services in certain matters.

RECITALS

OPEN COLLECTIVE EUROPE ASBL is a non-profit association (vereniging zonder winstoogmerk / association sans but lucratif), incorporated and existing under the laws of Belgium, with offices at 1050 Brussels, Avenue Louise 500, boîte 205, registered with the Belgian Crossroads Bank for Enterprises under number 0680.493.996 (RLE Brussels, French-speaking division). Its charitable purposes and activities allow groups of natural persons – such as an Initiative which meets the criteria set forth in the protocols, which are attached hereto and incorporated herein by reference as Exhibit A (“Protocols”) – to form a collective in order to raise funds (and manage these funds transparently) for particular projects, initiatives and movements, without having to incorporate a legal entity with legal personality.

The Initiative’s charitable mission as set forth in the materials submitted to the Association meets the Association’s criteria as set forth in Exhibit A.

The Initiative desires to make use of the services rendered by the Association, upon the terms and subject to the conditions set forth in this Agreement.

In support of the Initiative, the Association has authorized the creation of a restricted fund (referred to as the "Fund") designed to receive donations and other assets specifically designated for supporting the Initiative. The primary purpose of this Fund is to act as an intermediary vehicle through which the Association, while maintaining a distinct separation, indirectly represents (middellijke vertegenwoordiging / représentation indirecte) and assists the Initiative. The Fund will receive all contributions made during the Term (as defined herein), with the exception of deductions for administrative charges, interest, expenses, and other fees, as outlined in the Protocols. These contributions will subsequently be disbursed to the Initiative to support the objectives of the Initiative. This arrangement emphasizes the Association's role as an intermediary, facilitating support for the Initiative, while clarifying that the Association holds no direct ownership over these contributions received by the Fund.

AGREEMENT

In consideration of the mutual promises in this Agreement, the Initiative and the Association agree to be bound by the following:

1. RECITALS

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

2. TERMS OF AGREEMENT

This Agreement shall commence upon the Effective Date, and will continue unless and until terminated under Section 6 of this Agreement (“Term”).

3. RELATIONSHIP & PROCESS

The Association will assist in managing the Fund owned by the Initiative and held by the Association on behalf and for the benefit of the Initiative. The Association will receive the contributions to the Fund on behalf and for the benefit of the Initiative and, in strict adherence to the Protocols, will exclusively manage the disbursement of the contributions for the exclusive purposes of the Initiative, without ever assuming ownership of these contributions.

Relationship. The Initiative cannot legally act for the Association. It is expressly understood that, unless a separate, specific partnership agreement (of any kind) is concluded, the relationship between the Initiative and the Association shall be unequivocally construed as one of indirect representation (middellijke vertegenwoordiging / représentation indirecte). This means that the Initiative retains full responsibility for its activities and all related (tax) compliance obligations in relation to its activities. In that regard an Initiative is expressly prohibited from utilizing the Association's tax identification number (e.g. for the issuance or receipt of invoices). Should the Initiative require a tax identification number, it shall be responsible for obtaining its own tax identification number in accordance with the regulations of its country of activity.

Protocols. The Association will manage the Fund according to the Protocols, as set forth in Exhibit A. The Association may update the Protocols from time to time. If the Association makes any changes to the Protocols that significantly affect the Initiative’s rights or obligations under this Agreement, the Association will notify the Initiative of the changes, and the changes will become effective 30 days after that notification.

Solicitation of Contributions. The Initiative may solicit contributions, such as gifts, sponsorships, public subsidies and grants, for its charitable purpose. The Fund is allowed to receive these contributions on behalf and for the benefit of the Initiative, which will then be recorded in the Association’s website platform (“Platform”). However, at least 60 days prior to any official solicitation of contributions, the Initiative shall be required to provide notice in writing to the Association so that the Association may comply with any applicable rules or regulations. Moreover, the Initiative will have to sign a Service Agreement.

Agreements with third parties. The Initiative is not authorized to enter into any agreement or obligation with a donor, sponsor, vendor or other third party that purports to bind the Association or any agreement restricting the use of any contribution, negatively impacting the Association or going against their nonprofit purposes. The Association must approve, in advance and in writing, any agreement with a third party committing Initiative funds or establishing any obligation on the part of the Association. In order to enter into agreements with a donor, a sponsor, or other third party, the Initiative must sign an additional cooperation agreement with the Association.

Ownership of Initiative Property. The Initiative shall retain all right, title, and interest in any intellectual property of the Initiative, including any copyrights, trademarks, trade names, artwork, designs, logos, copy, and all other intellectual property (collectively, “Intellectual Property”). Furthermore, the Initiative represents that it has the authority to represent the interests of and act on behalf and for the benefit of the Initiative. The Association acknowledges and agrees that, absent any separate agreement to the contrary, any Intellectual Property provided to the Association by the Initiative shall not be transferred to the Association.

4. THE INITIATIVE

According to the terms of this Agreement, the Association will create a Fund for the Initiative designed to receive contributions on behalf and for the benefit of the Initiative, and to make disbursements for expenses incurred in furtherance of the Initiative. Beginning on the Effective Date, all contributions received by the Association on behalf and for the benefit of the Initiative shall be placed into the Fund. These contributions are the rightful property of the Initiative, and the Association shall exclusively operate as an intermediary (middellijke vertegenwoordiger / représentation indirecte), facilitating the allocation and utilization of these contributions solely on behalf and for the benefit of the Initiative's mission and objectives. Any significant changes to the Initiative’s mission and objectives must be approved in advance by the Association to ensure alignment with the Association’s mission. The Association will exercise full control over the Initiative’s financial administration, management, and disbursement of the Fund. The Association shall have the right to deduct any fees and expenses directly from the Fund without further approval by the Initiative.

Restricted Fund: Association’s Income. Given the qualification of the services provided by the Association as indirect representation (middellijke vertegenwoordiging / représentation indirecte), all contributions to the Fund will not be reported as the income of the Association, for both accounting and tax purposes of the Association.

Restricted Fund: Acknowledgment of Contributions. The Association is responsible for providing donors with acknowledgement of charitable contributions received by the Association on behalf and for the benefit of the Initiative. Please note for completeness’ sake that such acknowledgements do not qualify as tax certificates that allow a donor to obtain a tax advantage in return for the donation made.

Restricted Fund: Disbursements. The Association shall facilitate the disbursement of contributions from the Fund exclusively for valid expenses incurred by the Initiative. These disbursements shall occur solely upon the receipt of a formal request from the Initiative, which must detail and substantiate the specific expense in accordance with the Protocols. It is essential to emphasize that the monies held within the Fund and the ownership of Other Assets unambiguously belong to the Initiative, with the Association solely acting as an intermediary (middellijke vertegenwoordiger / représentation indirecte) that does not assume ownership of the aforementioned monies and Other Assets.

5. CHARITABLE PURPOSES

All of the contributions received by the Association on behalf and for the benefit of the Initiative under the terms of this Agreement will be devoted to the mission and objectives of the Initiative in furtherance of the Association’s charitable mission. The Initiative agrees it will use the funds which the Association disburses to it from the Fund, solely for the purposes of the Initiative, and it will repay to the Association any portion of those funds that is not spent or committed for those purposes.

The Initiative will not use any portion of the contributions to participate or intervene in any political campaign on behalf of 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 the Belgian Code of Companies and Associations.

6. TERMINATION

Either the Association or the Initiative may terminate this Agreement on 30 days' written notice to the other party.

If there is a positive balance in the Initiative’s Fund or the Association holds other assets of the Initiative at the time of termination, this positive balance or other assets will be distributed as follows:

• The Association will reimburse any valid expenses of the Initiative upon receipt of a final request from the Initiative, submitted within 15 days of notice of termination, detailing and documenting the expense as specifically set forth in the Protocols.

• Within the 30-day notice period, the Initiative may identify a successor organisation who is willing and able to carry on the Initiative, and

  • Which is recognized as a non-profit organisation.
  • To which distribution of the Initiative Fund 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 laws, the Association – on behalf of the Initiative – will transfer the positive balance and other assets of the Fund to the Successor. To initiate such transfer the Successor must submit an expense note 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.

As an alternative to the transfer to a Successor, the Initiative may choose to transfer the positive balance and other assets of its Fund to another Initiative of the Association, or to the Association’s general operating Fund, subject to applicable laws and the approval of any third parties that may be required.

If no Successor or other qualified recipient as outlined in the previous paragraph is identified prior to the end of the notice period (including any mutually agreed extensions), the Association may, in its sole discretion, distribute or spend the positive balance and other assets of the Fund 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 initiative for substantially similar purposes, or using any balance to defray the Association’s costs of administering its fiscal sponsorship program.

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 sent by facsimile or email in the manner provided in this paragraph to the following persons:

To the Association:

Open Collective Europe ASBL/vzw
Avenue Louise 500, b. 205, 1050 Brussels, Belgium
Email: home@opensourceeurope.org

8. MISCELLANEOUS

Severability

If any provision or obligation in this Agreement is null or unenforceable, or would be contrary to a provision of mandatory law, but would be valid if some part of the provision were deleted or restricted, the provision with such deletion or restriction will be amended as may be necessary to make it valid.

The nullity or non-applicability of any provision of the Agreement shall not affect the validity or applicability of other provisions of the Agreement, which shall remain in full force and effect.

No Waiver

When refraining from exercising a right or postponing its exercise, then it will not be considered as a waiver of this right, nor will an exercise or partial exercise thereof prevent its future exercise (in full) or the exercise of another right.

When not exercising a right or remedy or postponing the exercise thereof, this will not be considered as an (implicit) waiver of the right or remedy concerned. Nor shall the partial exercise of a right or remedy prevent the further exercise of such right or remedy.

The rights arising out of this Agreement do not damage the other rights or remedies pursuant to the law or any other agreement.

Transfer of Rights or Obligations

Unless provided otherwise, the rights and obligations arising from this Agreement cannot be transferred to a third party. As long as consent is not obtained, the transferring party remains liable for all allegedly transferred obligations (without prejudice to any other right or remedy).

EXHIBIT A: Protocols

The following are Protocols of the Association; these Protocols may be amended by the Association with 30 days’ notice at any time.

Criteria: In furtherance of the Association’s mission, it promotes initiatives with the charitable purposes outlined below. As such, the Initiative has provided evidence and the Association has confirmed that the Initiative has met the following criteria for the Association’s fiscal sponsorship of the Initiative:

• Not for profit: Initiatives that join the Association must justify the non-profit nature of their project. Initiatives must have a charitable mission and purpose. They may develop commercial activities, but these may not be the main source of income for the Initiative. Moreover, the profits generated by a commercial activity must be used to fulfil the Initiative's (and therefore the Association's) mission and purpose, and may not be used to enrich the Initiative’s administrators.
• Apolitical: Initiatives that join the Association must be non-political and non-partisan. They cannot engage in political campaigns to promote a certain political party. Nor can Initiatives carry out fundraising campaigns to support a political figure. Political neutrality is therefore a must.
• Secular: Initiatives that join the Association must be secular. They cannot represent a certain religious movement and must remain neutral. However, Initiatives aiming at launching a think tank in the place of a religion or spirituality can be accepted under certain conditions (at the discretion of the Association). Groups aiming to promote or launch educational programmes about a religion or spirituality are not accepted.

Requirements Imposed on the Initiative: To remain in compliance under the terms of this Agreement, the Initiative must use the contributions received for stated activities; and maintain at all times a public and transparent ledger for the disbursement of those funds on the Platform. The Initiative must maintain an updated and detailed description of its activities on its Platform page, and provide regular updates (minimum once a year).

The Association Administrative Contribution & Expenses: The Initiative will be required to give an administrative contribution and cover any expenses the Association incurs on the Initiative’s behalf as a result of this Agreement. Unless there is a specific Service Agreement in place between the Association and the Initiative, the following administrative contribution and expenses will be automatically deducted from the Initiative’s Fund:

Administrative contribution consists of:

• 8% of the gross amount of donations received by the Association through the Platform on behalf of the Initiative (including, but not limited to donations by cards through the Platform (PayPal/Stripe)) during the term of this Agreement; AND
• 10% of the gross amount of donations received by the Association through direct bank transfers to the bank account of the Association on behalf of the Initiative (including, but not limited to tax deductible donations, grants, grants from 501(c)(3) foundations and funds through our equivalency determination) during the term of this Agreement; AND
• All interest income earned on the contributions made to the Fund will be retained by the Association.

Expenses: In addition to the administrative contribution, the Initiative is responsible for any expenses (including, but not limited to, merchant account credit card processing fees) incurred by the Association as a result of administration of the Fund, which are directly related to the Initiative’s actions.

Platform: Upon execution of this Agreement, the Initiative will be featured on the Platform located at https://opencollective.com/europe. The Association will set the Initiative up on the Platform such that the Initiative will have its own dedicated page that tracks, in total transparency, the contributions that it receives and the expenses it incurs in relation to the Initiative. The Initiative’s page on the Platform will be linked to the Association’s Stripe account, Wise account, and PayPal account so that the Association has control over the contributions received and disbursed under the Platform for purposes of the Initiative’s purpose. The Platform thus serves as a fundraising avenue for the Initiative’s approved activities, enabling it to receive contributions and pay for Initiative expenses. The Platform makes the revenue and expenses of the Initiative available to the public through a transparent ledger.

Disbursements: In order to receive a disbursement from the Fund to cover expenses incurred in furtherance of the Initiative, the Initiative must upload its receipts/invoices onto the Platform for review by the staff members of the Association. Upon the Association’s receipt of said receipts/invoices its staff members will review all documentation to ensure the expenses to be incurred are valid and in alignment with the Association’s charitable mission and purposes and the terms of this Agreement. Upon approval by the Association staff members, the Association will allow those expenses to be incurred from the Fund by the Initiative through the Platform using PayPal, Wise, or other mutually agreed payment method. Each time the Association approves such expenses, the contributions allocated to the Initiative on the Platform will automatically decrease by the amount used. Specifically, the Initiative shall be required to submit details of such anticipated Foreign Expenses to the Association, which shall include but not be limited to the maximum amount to be incurred. In the event the Association determines in writing that such Foreign Expenses may be eligible for reimbursement from the Fund as provided for above, the Initiative shall be permitted to incur the disclosed and approved Foreign Expenses and seek disbursement from the Fund pursuant to the process set forth above. The Association shall not reimburse from the Fund, any Foreign Expenses incurred by the Initiative for which the Association does not provide prior written approval.

Funds Received/Expenses Paid Outside Platform: In the event that the Initiative receives contributions outside of the Platform (i.e. that do not go directly into the Fund), the Initiative will immediately transfer such contributions to the Association for deposit into the Initiative’s Fund; at no time shall the Initiative hold any contributions outside of the Fund or utilise the services of any other fiscal sponsor during the Term of this Agreement. The Association will use a feature enabled on the Platform to ‘Manually Add Funds’ to the Initiative’s page upon the Association’s receipt and deposit of these contributions into the Fund. This means that the Association will assign the contributions received in the Fund destined to the Initiative for the Initiative, thus increasing its budget. In the same fashion, if an expense is paid outside of the Platform by the Initiative, because for example the recipient does not hold a PayPal account or another payout method is required, then the Association will use the ‘Mark as Paid’ feature on the Platform, that allows the Association to record that an expense has already been paid through a different method and that amount is automatically deducted from the Initiative’s Fund balance.

Reporting: The Association will send the Initiative a monthly email report with all transactions related to the Fund including the contributions received and the invoices and expenses that have been paid.