These are the Terms and Condition of Fiscal Sponsorship by NaOM Lab LLC on the Open Collective platform.
Updated May 4, 2022
This agreement is entered into effect (“Effective Date”) upon acceptance of the Terms of Fiscal Sponsorship when creating a Collective (“Initiative”, “Collective”, or “Sponsee”) and requesting fiscal sponsorship by NaOM Lab LLC (“Sponsor”) by and between NaOM Lab LLC, a Virginia limited liability company, and the Collective.
The parties enter into this Agreement with reference to the following facts:
WHEREAS, Sponsor is a Virginia limited liability company serving as a fiscal sponsor to certain initiatives which meet the criteria set forth in the protocols, which are attached hereto and incorporated herein by reference as Exhibit A (“Protocols”).
WHEREAS, Sponsee’s purpose as set forth in the materials submitted to Sponsor has met the Sponsor’s criteria as set forth in Exhibit A.
WHEREAS, The initiative desires to become a Collective of the Sponsor, to support the initiative, and the Sponsor desires to accept the initiative as a Collective of the Sponsor in support of the initiative, upon the terms and subject to the conditions set forth herein.
WHEREAS, In support of the Initiative, Sponsor shall create a restricted fund (the “Fund”) to receive donations of cash and other property earmarked for support of the Initiative, and to grant from the Fund all amounts raised by Sponsee during the Term (as defined herein), less any administrative charges, interest, expenses and other fees (as provided for in the Protocols), to Sponsee in furtherance of the Initiative.
In consideration of the mutual promises in this Agreement, the parties agree as follows:
The above cited Recitals are incorporated herein by this reference and made a part of this Agreement.
2. TERM 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
Sponsor will manage the Fund and any Other Assets (as defined in Section 3(E) below) held for the benefit of the initiative. The Sponsor will collect the income and will pay and disburse the net income and principal for purposes of the Initiative as specifically set forth in the Protocols.
- Relationship of the Parties. Nothing in this Agreement constitutes the naming of the Sponsee or members or agents of the Sponsee as an agent or legal representative of Sponsor for any purpose whatsoever except as specifically and to the extent set forth herein.
- Protocols. The Sponsor will manage the Fund according to the Protocols, as set forth in Exhibit A. The Sponsor may update the Protocols from time to time. If the Sponsor makes any changes to the Protocols that significantly affects the initiative’s rights or obligations under this Agreement, Sponsor will notify the initiative of the changes, and the changes will become effective 30 days after that notification.
- Solicitation of Contributions & Fundraising. Sponsee may solicit gifts, contributions, sponsorships, and grants to Sponsor for the purposes of the Initiative, including through the Open Collective website platform (“Platform”). However, at least 60 days prior to any official fundraising campaigns or events that are to be physically held in a particular geographic location (as opposed to online), Sponsee shall be required to provide notice in writing to Sponsor so that Sponsor may comply with any applicable state or local rules or regulations. For purposes of clarity, Sponsee shall not be required to provide such notification to Sponsor for any fundraising campaigns or events that solely take place over the Internet.
- Agreements with Third Parties. Sponsee is not authorized to enter into any agreement or obligation with a donor, sponsor, vendor or other third party that purports to bind the Sponsor or the Initiative, including any agreement restricting the use of any contribution. The Sponsor 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 Sponsor or the Initiative.
- Ownership of Initiative Property. As between the parties, 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, Initiative represents that it has the authority to represent the interests of and act on behalf of the Initiative. The Sponsor acknowledges and agrees that, absent any separate agreement to the contrary, any Intellectual Property provided to the Sponsor by the initiative or its agents for inclusion in the Initiative shall not thereby be transferred to the Sponsor.
Notwithstanding the paragraph above, Initiative may separately agree to transfer assets, including Intellectual Property and physical property, to the Sponsor to be held for the benefit of the Initiative. Any such transferred assets (“Other Assets”) shall become the property of the Sponsor.
4. THE INITIATIVE
According to the terms of this Agreement, the Sponsor will create a Fund for the Initiative to receive funds earmarked for support of the Initiative, and to make disbursements for expenses incurred in furtherance of the Initiative. Beginning on the Effective Date, the Sponsor will place all such revenues received by the Sponsor and identified with the Initiative into the Fund to be used for the benefit of the Initiative’s purpose. Any significant changes to the Initiative’s purpose must be approved in advance by the Sponsor to ensure alignment with the Sponsor’s criteria. The Sponsor will exercise full control over the Initiative’s financial administration, management, and disbursement of the Fund and any Other Assets. The Sponsor shall have the right to deduct Project Dues and Expenses, as defined by the Protocols, directly from the Fund without further approval by the initiative.
- Restricted Fund: Sponsor’s Income. The parties agree that all money and the fair market value of the Fund and all Other Assets will be reported as the income of Sponsor, for both tax purposes and for purposes of Sponsor’s financial statements. Accordingly, Sponsor is responsible for the processing and deposit in the Fund of all monies received for the Initiative.
- Restricted Fund: Acknowledgment of Contributions. Sponsor is responsible for providing donors with acknowledgement of contributions received by Sponsor for Initiative.
- Restricted Fund: Disbursements. The Sponsor will disburse monies from the Fund and dispose of Other Assets only for valid expenses of the Initiative, and only upon receipt of a request from the Initiative detailing and documenting the expense as specifically set forth in the Protocols.
5. APPROPRIATE USE OF FUNDS
All of the assets received by Sponsor under the terms of this Agreement will be devoted to the purposes of the Initiative. Sponsee agrees it will use the funds Sponsor disburses to it from the Fund solely for the purposes of the Initiative, and it will repay to Sponsor any portion of those funds that is not spent or committed for those purposes.
Either the Sponsor 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 Fund or the Sponsor holds Other Assets of the Initiative at the time of termination, the Initiative’s assets will be distributed as follows:
- The Sponsor will reimburse any valid expenses of the Initiative upon receipt of a final request from 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, Initiative may identify a successor organization who is willing and able to carry on the Initiative (a “Successor”), and to which distribution of the Initiative Fund and Other Assets is made. Upon determining that the Successor meets these qualifications and that the distribution is permitted by applicable law, the Sponsor will transfer the balance of assets in the Sponsor’s restricted Fund for the Initiative, together with any Other Assets held or liabilities incurred by the Sponsor in connection with the Initiative, to the Successor. To initiate the transfer of funds, the Successor payee must submit an expense as outlined in the Protocols. The transfer will be made after the end of the notice period or any extension thereof, subject to the approval of any third parties that may be required.
- As an alternative to a Successor, Initiative may choose to transfer the balance of its Fund to another Sponsee Initiative of the Sponsor, or to an organization of Sponsee’s choosing.
If no Successor or other qualified recipient is identified prior to the end of the notice period (including any mutually agreed extensions), the Sponsor may, in its sole discretion, distribute or spend the Initiative Fund and dispose of Other Assets in any manner consistent with applicable tax and charitable trust laws, which may include granting any balance to another fiscal sponsor, re-allocating any balance to another initiative for substantially similar purposes, or using any balance to defray the Sponsor’s costs of administering its fiscal sponsorship program.
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:
NaOM Lab LLC
40896 Birdstone Ln Aldie, VA 20105
Email: [email protected]
Collective or Fund name, Email address, and information
provided when creating the Initiative
Any controversy, claim, or dispute between the parties arising from or related to this Agreement that cannot be resolved through discussions between the Sponsee and Sponsor’s leadership must be submitted to mediation before a single mediator mutually agreed to by the parties. If the claim or dispute is not resolved through mediation, it will be submitted to legally binding arbitration before an arbitrator mutually agreed to by the parties. The arbitration will be governed by the rules of the American Arbitration Association. Binding arbitration under this provision is the sole and exclusive remedy for resolving any such dispute or claim, and no party has right to a trial in the civil courts or any right to appeal the arbitrator’s decision, except as may be permitted by the arbitration rules. Judgment upon the award rendered by the arbitrator may be entered in any court otherwise having jurisdiction thereof. The parties will evenly split the costs of the arbitration. Each mediator and arbitrator under this provision must be an attorney who has been licensed to practice law in the Commonwealth of Virginia or any other state for at least 10 years. If the parties cannot agree upon a qualified mediator or arbitrator, each party will select a qualified person and those two (2) will select a third qualified person to be the sole mediator or arbitrator. Notwithstanding the above, neither party is prevented from obtaining injunctive or other equitable relief from a court of competent jurisdiction pending the resolution of a dispute through mediation or arbitration.
9. ATTORNEY’S FEES
The prevailing party in any legal action to enforce this Agreement is entitled to recover its costs and reasonable attorney’s fees in addition to any other relief granted.
10. CHOICE OF LAW
This Agreement is governed by and interpreted in accordance with the laws of the Commonwealth of Virginia applicable to agreements made and to be enforced entirely within such State. The sole situs of all mediation, all arbitration, and any other form of dispute resolution for any controversy or claim arising out of this Agreement is the County of Los Angeles in the Commonwealth of Virginia in the United States of America.
11. ENTIRE AGREEMENT; MODIFICATION
This Agreement supersedes any prior oral or written understandings or communications between the parties and constitutes the entire agreement of the parties with respect to the subject matter hereof. This Agreement may not be amended or modified, except in a writing agreed by both parties hereto.
Each provision of this Agreement will be separately enforceable, and the invalidity of one provision will not affect the validity or enforceability of any other provision. The failure of Sponsor to exercise any of its rights under this Agreement will not be deemed a waiver of such rights.
13. SPONSEE RECEIPT OF AGREEMENT
By agreeing to this Agreement, Sponsee acknowledges that each member and agent of the Sponsee has received a complete copy of this Agreement, including Exhibit A, Protocols and hereby agrees to be bound by the terms hereof.
14. SPONSEE LIABILITIES & INDEMNIFICATION
Sponsee is responsible for all activities of its Initiative, including any financial or other liabilities and hereby agrees that it will not enter into any conflicting obligations herein as it pertains to this subject matter. Sponsee shall indemnify, defend and hold harmless Sponsor and its respective agents, representatives, employees, directors, managers, members, and officers from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) resulting from Sponsee’s performance of its obligations contained herein; injury (including sickness, disease or loss of life) to any person, or damage to any property of any third party at or as a result of Sponsee’s activities or its Initiative, including that caused by Sponsee’s willful, wanton or intentional acts; Sponsee’s improper use of or claim to the Initiative, including those made by any third party for Sponsee’s violation of any intellectual property laws; or Sponsee’s operations of the activities under its Initiative.
The following are Protocols of Sponsor; these Protocols may be amended by Sponsor with 10 days notice at any time.
- Criteria: Sponsor promotes initiatives in the United States without regard to charitable status. Sponsor retains the right to approve or decline in its sole discretion any application regardless of the purpose of the Collective. However, in no case shall Sponsor approve an application from any organization engaged in the following activities:
- Any illegal activity in any jurisdiction of the United States of America;
- Creation or sale of pornography and related products considered part of the “adult industry”;
- Manufacture or sale of controlled substances;
- Manufacture or sale of firearms, ammunition, or related paraphernalia;
- Political advocacy or lobbying;
- Any organization funded in whole or in part by a foreign government;
Sponsee agrees that if during the term of this Agreement its purpose changes to any non-compliant criteria that Sponsor retains the right to terminate services in accordance with the Terms set forth herein.
- Requirements Imposed on Sponsee: To remain in compliance under the terms of this Agreement, Sponsee must use the funds received for stated activities; and maintain at all times a public and transparent ledger for the disbursement of those funds on the Platform.
- Sponsor Fee & Expenses: Sponsee will be required to pay fees (“Fees”) and cover any expenses Sponsor incurs on Sponsee’s behalf as a result of this Agreement. Sponsee’s Fund will be automatically deducted to pay from the Fund the following
- Fees and expenses: Fees consist of a percentage of the gross amount of all funds raised by Sponsee during the Term of this Agreement per the following rates:
- 10% of gross receipts up to $10,000,000 USD
- 8% of gross receipts above $10,000,000 USD up to $100,000,000 USD
- 6% of gross receipts above $100,000,000 USD
- All interest earned on the Fund which will be retained in Sponsor’s general fund.
- Expenses: In addition to the Fees, Sponsee is responsible for any merchant account processing fees incurred by Sponsor as a result of administration of the Fund, which are directly related to Sponsee’s Initiative.
- Platform: Upon execution of this Agreement, Sponsee’s Initiative will be featured on the Platform located at https://opencollective.com/naomlab. Sponsee will have its own dedicated page on the Platform that tracks, in total transparency, the funds that it raises and the expenses it incurs in relation to the Initiative. The Sponsee’s page on the Platform will be linked to Sponsor’s bank and/or payment processing accounts so that Sponsor has control over the funds received and disbursed under the Platform for purposes of Sponsee’s Initiative. The Platform thus serves as a fundraising avenue for the Sponsee’s approved Initiative enabling it to raise funds and pay for Initiative expenses. The Platform makes the revenue and expenses of Sponsee 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 Sponsee must upload its receipts/invoices onto the Platform for review by the staff members of the Sponsor. Upon Sponsor’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 Sponsor’s purposes and the terms of this Agreement. Upon approval by the Sponsor staff members, Sponsor will allow those expenses to be incurred from the Fund by Sponsee through the Platform or other mutually agreed payment method. Each time Sponsor approves such expenses, the funds allocated to Sponsee on the Platform will decrease by the amount used. Notwithstanding the foregoing however, prior to incurring any expenses outside of the United States (“Foreign Expenses”) for which Sponsee wishes reimbursement from the Fund, Sponsee shall obtain prior written consent from Sponsor. Specifically, Sponsee shall be required to submit details of such anticipated Foreign Expenses to Sponsor, which shall include but not be limited to the maximum amount to be incurred. In the event Sponsor determines in writing that such Foreign Expenses may be eligible for reimbursement from the Fund as provided for above, Sponsee shall be permitted to incur the disclosed and approved Foreign Expenses and seek disbursement from the Fund pursuant to the process set forth above. Sponsor shall not reimburse from the Fund, any Foreign Expenses incurred by Sponsee for which Sponsor does not provide prior written approval.
- Funds Received/Expenses Paid Outside Platform: In the event that Sponsee receives funding outside of the Platform (that which does not go directly into the Fund), Sponsee will immediately transfer such funds to Sponsor for deposit into Sponsee’s Fund; at no time shall Sponsee hold any funds for the Initiative outside of the Fund or utilize the services of any other fiscal sponsor during the Term of this Agreement. Sponsor will use a feature enabled on the Platform to ‘Manually Add Funds’ to Sponsee’s page upon Sponsor’s receipt and deposit of the outside funds into the Fund. This means, that Sponsor will assign the funds received in the Fund destined to the Initiative for the Sponsee, thus increasing its budget. In the same fashion, if an expense is paid outside of the Platform by Sponsee, because for example the recipient does not hold a PayPal account or another payout method is required, then Sponsor will use the ‘Mark as Paid’ feature on the Platform, that allows Sponsor to record that an expense has already been paid through a different method and that amount is automatically deducted from the Sponsee’s Fund balance.
- Reporting: Sponsor will send Sponsee a monthly email report with all transactions related to the Fund including the revenue generated and the invoices and expenses that have been paid.