Proof Industries, LLC
1860 Barnett Shoals Rd Suite 103-465
Athens, GA 30605
This Terms of Service Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of our Service Offerings and any Additional Functionality (as defined below) and is an agreement between Proof Industries, LLC (“Proof,” “we,” “us,” or “our”) and you. This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date”). You represent to us that you (a) have read, understand, and agree to be bound by this Agreement; (b) are lawfully able to enter into contracts (e.g., you are not a minor). If you are using the Service Offerings on behalf of an entity, you are agreeing to this Agreement for that entity and representing to Proof that you have the authority to bind that entity to this Agreement (in which case “you” and “User” will refer to that entity, and, together with other users of the Services, “Users”), unless that entity has a separate contract in effect with us, in which event the terms of that contract will govern use by the entity. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE OFFERINGS.
Your use of, and participation in, certain services offered by Proof may be subject to additional terms (“Supplemental Terms”), and such Supplemental Terms will either be listed in the Agreement or will be presented to you for your acceptance when you sign up to use the supplemental service. If the Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such service. This Agreement and any applicable Supplement Terms are referred to herein as the “Agreement.”
THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND A WAIVER OF JURY
TRIALS, AND REQUIRES BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.
THIS AGREEMENT LIMITS THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY PROOF IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Proof will make a new copy of this Agreement available at its Web Site. We will also update the “Last Updated” date at the top of this Agreement. If we make any material changes, and you have an account with us, we will also either send an e-mail to you at the last e-mail address you provided pursuant to this. Any changes to the Agreement will be effective immediately for new users of the Service Offerings and will be effective thirty (30) days after posting notice of such changes on the Web Site for existing Users, provided that any material changes shall be effective for Users who have an account with us upon the earlier of thirty (30) days after posting notice of such changes on the Web Site or thirty (30) days after dispatch of an e-mail notice of such changes to such Users. Proof may require you to provide consent to the updated Agreement in a specified manner before use the Services is permitted. If you do not agree to any change(s) after receiving notice of such change(s), your account and any related services (such as hosting) may be suspended. Otherwise, your continued use the Service Offerings constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEB SITE TO VIEW THE THEN-CURRENT AGREEMENT
In short, You are hiring Proof Industries, LLC to work on your behalf at their current hourly rate (US$90/hr) unless otherwise specified in a service plan or work request’s Supplemental Terms.
As a general rule of thumb, anything done at your request or related to advancing a signed project is billable. This list contains examples of items you’re likely to see on an invoice, but should not be considered comprehensive:
Examples of Billable Items:
• Actual work time
• Project planning
• Redrafting the project plan and timeline
• Reading and responding to emails
• Unscheduled calls
• Tracking tasks in a collaboration area
• Creating process documents of the work being completed
• Individual training or education specific to the client and work
• Training the client after the work is complete
• Travel time
• Redoing work at the request of the client
• Fixing bugs
Examples of non-billable items:
• Initial consultation call
• Time spent drafting a proposal and contract for the work
• Maintenance and operation of equipment, network, and software related to producing your project.
• Training done on our own that results in knowledge you can use outside of your project
• Social activities
• Time spent fixing our own errors (Example: an accidental deletion on a site file from the server. Does not include fixing software bugs.)
When we receive a signed design work request or you join a membership plan with Proof that includes design services, we’ll create conceptual designs for the look-and-feel, layout and functionality of your web site or project. Deliverables are specified in every work request, but typically include flattened (small file size) artwork, and the layered .psd or .fw.png (Fireworks layered PNG) for use in the next stages of production.
Growth Driven Design (GDD) for Websites
If you need a new website, or a refresh of an existing site, we offer Growth Driven Design (GDD) services. Traditional web site projects are an unpleasant, ineffective process born old agency print and publication based approaches. Websites are a unique animal, and they need their own type of approach and ongoing care that addresses these needs so that the project becomes effective and rewarding. Growth Driven Design provides the plan and project structure to execute the necessary steps and create a website that has trackable, goal oriented performance.
The landscape of web browsers and devices changes regularly and our approach is to look forward, not back. With that in mind we will test all of our markup and CSS in current versions of all major desktop browsers to ensure that we make the most from them. Users of older or less capable browsers or devices will experience a design that is appropriate to the capabilities of their software. For people using Microsoft Internet Explorer 9, this typically means a universal, typographically focused design but no layout. Exceptions can be outlined when a work request for CSS is submitted.
We will not test old or abandoned browsers, for example Microsoft Internet Explorer 6 for Windows or Mac, previous versions of Apple’s Safari, Mozilla Firefox or Opera unless otherwise specified. If you need us to consider these older browsers, additional charges may apply for any necessary additional design work, development and testing.
Back End Development
We’re a “full-stack” firm, so we can handle all aspects of a web project’s needs including server-side development. We typically create our projects using PHP (a scripting language) and MySQL (a database for storing and retrieving information). These are powerful and widely used technologies that have been the foundation of much of the internet for years. For example, Facebook, Tumblr, and Wikipedia all rely on these technologies in some form. Even if you have a unique need, we can develop custom solutions for you in most cases.
Typical examples of back end development we offer:
• WordPress integration (for content management)
• Integration of WordPress with third party A.P.I.s
• E-commerce setup through WooCommerce
If you have a unique need requiring custom development, let’s talk about it. If it’s within our capabilities, we would love to help.
The internet and the world of software development can be massive, complicated places. Sometimes it’s extremely helpful to have a knowledgeable guide when making decisions related to what to pursue, do, and/or create. We are available for general consultation on anything you’re considering doing in these areas. For example, if you were considering creating a new iOS application, we could work with you to create a complete project plan to take to potential investors. Things like market research, an estimated budget, a full timeline, and recommended vendor lists are far easier to complete when you have an experienced consultant working with you.
Consultation is typically done at our regular hourly rate and often requires a reasonable retainer.
Inbound Marketing with HubSpot
Proof is an official partner agency with HubSpot, one of the original and best tools for crafting and executing inbound marketing campaigns across websites, social media, e-commerce stores, and paid advertising networks. Having the right tool is a great start, but not everyone who picks up a pencil can draw like Da Vinci. Companies that use HubSpot’s software alongside services from an experienced agency partner can dive right in and use the tools expertly. When you partner with Proof Industries, you gain a team certified in inbound marketing, email marketing, and sales enablement (connecting marketing with sales and closing the deal).
Social Media Marketing with HubSpot
Social media provides the opportunity to build brand awareness, transmit messages to key audiences, and drive website traffic at relatively low cost. We are available to build comprehensive and coordinated campaigns that build a social media presence for you. With our proven track record for excellent results we can work with you to generate more leads and promote your goals.
Examples of Social Media Marketing Services Available:
• Ghostwriting of Tweets/posts
• Scheduled content publishing on various networks
• Determination of campaign goals
• Creating campaign plans based on goals
• Analysis of campaign effectiveness
Setting up, automating, and otherwise facilitating project related servers, services, and launch configurations is commonly referred to as ‘DevOps.’ We are available to help you set up and execute a great solution for new or existing projects at our regular hourly rate.
We are not responsible for writing or inputting any text copy unless specified in the project’s work request. We are happy to help though, and in addition to the estimate will charge you at our hourly rate for copy writing or content input.
When needed, you will supply us with photographs in a digital format appropriate to the project’s needs. If you choose to buy stock photographs we can suggest vendors of stock photography. Any time we spend searching for appropriate photographs will be charged at our hourly rate.
If you need or want help creating original photographs, we would be happy to facilitate the booking of a professional photographer, and coordinating any photography sessions. Time spend on activities related to the creation of photos will be billed at our regular hourly rate, in addition to whatever the photographer’s fees may be.
We are available to for training sessions at our regular hourly rate and would love to help you learn the skills you need to use your new website, become an amazing Twitter personality, or any other skill we can share with you.
We offer other services related to the production of projects including:
• Domain purchase, registration, and management
• Reporting tools
• Online billpay (for your account at Proof)
• Project management tools
• Content authoring and management tools
• Support request and tracking tools
• Backups and Recovery
As our customer, you agree to provide us with everything that we’ll need to complete the project, including text, images and other information when we need it and in the format we ask for. You agree to review our work, provide feedback and approval in a timely manner too. Project timelines work two ways and you’ll also be bound by any dates that we set together. You also agree to stick to the payment schedule and/or the monthly membership fees outlined in this and any Supplemental Agreements.
We have the experience and ability to perform the services you need from us and will carry them out in a professional and timely manner. Along the way we will endeavor to meet all the project milestones set but we can’t be responsible for a missed launch date or other milestone if you have been late in supplying materials or have not approved or signed off on our work on time at any stage. On top of this we’ll also maintain the confidentiality of any information that you give us.
Proof Industries will require one point of contact during the Contract for clarifying requirements for design, key features, usability and maintenance issues. Proof requires this person be available to answer questions arising from the project within 48 hours on workdays (subject to reasonable exceptions), and to have authority to make design and related decisions on the system.
A paid support plan of at least twelve months is generally required to complete projects with Proof. Details and pricing will be provided and agreed to through Supplemental Terms if such an arrangement applies to the services you have engaged with us. If no support plan is in place, Proof will provide patches and bug fixes for any bugs or issues included in the scope of this contract reported within the grace period of no more than 30 days following the date of project completion. All bug fixes outside of the project scope or after the grace period are the responsibility of the client.
Although Proof Industries makes every effort to provide secure Finished Product(s), due to the nature of rapidly advancing technology, Proof Industries can in no way guarantee that the Finished Product(s) will not be subject to security breaches. Proof Industries recommends the use of strong passwords and the observance of standard security practices. The Client is solely responsible for tracking software updates.
Proof Industries is not responsible for any delay or defect caused by separate third party or the Client’s in-house teams.
Proof Industries maintains internal backups of active project code and design files. This backup system is not intended as a solution for the Client, rather as a code archive through the duration of this Contract. While the Proof Industries backup system is fully redundant, it is not guaranteed. Client is solely responsible for the Backup and Restoration of the Finished Product(s) and any associated data.
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the web site are either owned by yourselves, or that you have permission to use them.
When we receive your final payment, or if you accept deliverables from us during a period where you have an active membership account with Proof Industries, copyright is automatically assigned as follows:
You own the graphics and other visual elements that we create for you for this project. We’ll give you a copy of all files upon request and you should store them really safely as We are not required to keep them or provide any native source files we used to make them.
You also own text content, photographs, other data you provided, markup, css, and any other code, unless someone else owns them.
We love to show off our work and share what we have learned with other people, so we reserve the right to display and link to your completed project as part of our portfolio and to write about the project on web sites, in magazine articles and in books about web design.
All invoices will be handled through an online service, for which you will receive a unique login that will allow you to view the state of your account, a history of payments, and pay any outstanding bills.
Enrollment in auto-draft payment through is required for any membership or recurring service. Visa, MasterCard, Discover, and American Express are accepted. We reserve the right to put services on pause immediately if an auto-draft payment fails.
If there are extenuating circumstances, and you are absolutely unable to enroll in auto-draft payments, we require the full fee for the proposed Subscription Term, plus a USD $1500 non-refundable retainer for expenses in advance. Payment must be in the form of a check and postmarked within five business days of an invoice being received. We reserve the right to put services on pause if a payment is not made in advance, or if the expense retainer is depleted.
Fees for fixed price projects are due in advance. Work will not commence on a project until payment has been received.
All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance of each month’s service throughout the Subscription Term.
We can’t guarantee that the functions contained in any web page templates, social media campaigns or in a completed website or deliverable will always be error-free and so we can’t be liable to you or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this web site, social profile and any other web pages, even if you have advised us of the possibilities of such damages.
If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.
Relationship with User
Proof has no special relationship with or fiduciary duty to you. You acknowledge and agree that Proof has no control over, and no duty to take any action regarding: which Users gains access to your account or projects with us; what effects our services may have on you; how you may interpret or use the Service Offerings or Additional Functionality; or what actions you may take as a result of having been exposed to the Service Offerings or Additional Functionality. Any portion of the User Content of the Service Offerings or Additional Functionality that is provided by you is your responsibility and any portion of the User Content provided by any third party is the responsibility of the third party who posted such User Content. Proof does not monitor the User Content of the UI and takes no responsibility for such User Content. You release Proof from all liability for User Content or Third Party Content which you access through the UI.
Disclaimer of Warranties
The Service Offerings and Additional Functionality are provided on an “as is” basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Proof makes no representations or warranties of any kind with respect to the Service Offerings or Additional Functionality, including any representation or warranty that the use of them will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet your, or your customer’s or Client’s, requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) be free of viruses or other harmful components. Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
Disclaimer of Liability
To the fullest extent allowed by law, Proof disclaims any liability or responsibility for the accuracy, reliability, availability, completeness, legality or operability of the Service Offerings, Content and Additional Functionality provided under this Agreement. By using the Service Offerings, Content, or Additional Functionality, you acknowledge that Proof is not responsible or liable for any harm resulting from: (1) use of the Service Offerings or Additional Functionality; (2) downloading information provided through the Service Offerings or Additional Functionality including but not limited to downloads of Content posted by third parties; (3) unauthorized disclosure of images, information or data that results from the upload, download or storage of Content posted by third parties; (4) the temporary or permanent inability to access or retrieve any User Content from the Service Offerings or Additional Functionality, or (5) harm caused by viruses, worms, Trojan horses, or any similar contamination or destructive program.
You will defend, indemnify, and hold us harmless, including our employees, officers, directors, representatives, our licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your use of the Service Offerings or Additional Functionality (including any activities under your account and use by Authorized Users, or your employees, agents, subcontractors, customers and Clients); (b) breach of this Agreement or violation of applicable law by you, Authorized Users, or your employees, agents, subcontractors, customers or Clients; (c) User Content or the combination of User Content with other applications, Content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your User Content or by the use, development, design, production, advertising or marketing of User Content; or (d) a dispute between you and any employee, agent, contractor, customer or Client. If we are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates
We will promptly notify you of any claim, but our failure to promptly notify you will only affect your obligations under this Section to the extent that our failure prejudices your ability to defend the claim. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
Limitation of Liability
WE AND OUR LICENSORS WILL NOT IN ANY EVENT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR YOUR LOSS OF PROFITS, GOODWILL, USE, OR DATA, EVEN IF WE OR OUR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE OFFERINGS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE LAW, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR USER CONTENT OR OTHER DATA. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT (INCLUDING ANY LIABILITY INCURRED BY OUR LICENSORS) WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 6 MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
The occurrence of any of the following shall constitute a material default under this Contract:
• The failure to make a required payment when due.
• The insolvency or bankruptcy of either party.
• The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Contract (including without limitation the failure to make a monetary payment when due), the other party may terminate the Contract by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Contract.
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
The parties will attempt to resolve any dispute out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues will be submitted to final and binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Contract is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
This Contract shall be construed in accordance with the laws of the State of Georgia.
Any notice or communication required or permitted under this Contract shall be sufficiently given if delivered in person, by email, or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have furnished to the other in writing.
Waiver of Contractual Right
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
Construction and Interpretation
The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.
Neither party may assign or transfer this Agreement without the prior written consent of the non-assigning party, which approval shall not be unreasonably withheld.
Although Proof will make reasonable efforts to store and preserve the material residing on your project’s servers or otherwise related to your project(s) with us, Proof is not responsible or liable in any way for the failure to store, preserve or access User Content or other materials you transmit or archive through the Service Offerings or Additional Functionality. Although the Service Offerings may offer mechanisms for the creation of back-ups of the User Content, you are solely responsible for creating copies of any data, material, or information transmitted, posted, or uploaded to the Service Offerings. All User Content is User’s property and is for User’s exclusive use subject to the rights given to Proof. In the event of data corruption, hardware failure or other data loss, Proof will make reasonable efforts to restore lost or corrupted data from server backups. Web server raw log files are not included in the backups and cannot be recovered during server restoration. Proof shall not be responsible for lost data or site content. User shall maintain a local copy of all data uploaded or stored on servers. PROOF SHALL NOT RETAIN ANY OF YOUR USER CONTENT AFTER ACCOUNT TERMINATION. ALL USER CONTENT IS DELETED (A) FROM THE SERVERS AT THE TIME THE ACCOUNT IS TERMINATED AND (B) FROM BACK-UPS DURING SCHEDULED BACK UP ROTATION. PROOF SHALL NOT RESTORE, “BURN” TO CD, OR SEND OUT ANY USER CONTENT PERTAINING TO TERMINATED ACCOUNTS. UNDER NO CIRCUMSTANCE SHALL PROOF BE LIABLE FOR ANY LOSS OF USER CONTENT.