Terms of Service

This page (along with the documents referred to in it) informs you about us and the legal terms and conditions (“Terms”) on which we supply any services (“Services”) listed on our website (“our site”) to you (“client”, “customer”).

Please read these Terms carefully and make sure that you understand them before ordering any Services from our site. Please note that by ordering any of our Services, you agree to be bound by these Terms and other documents expressly referred to in it.

If you refuse to accept these Terms, you will not be able to order any Services from our site or company.

We amend these Terms from time to time as set out in section 6. Every time you wish to order or renew Services, please check these Terms to ensure you understand the terms which will apply at that time and for the duration of your service.

1. Information about us

1.1 https://pinwheelweb.dev/ and https://ashdavenport.design/ are a websites operated by Pinwheel Web Development LLC (“we”, “us”, “our” or “company”.) We are registered at 5240 Henderson Mountain Rd. Jasper, GA 30143

1.2 To contact us please use our Ticket System or Contact page.

2. Use of our site and services

2.1 Your use of our site is governed by our Privacy Policy and our Acceptable Use Policy.

3. How we use your personal information

3.1 We only use your personal information in accordance of our Privacy Policy. Please read this policy as it includes important terms which applies to you.

4. Our Contract with you

4.1 These Terms and any document expressly referred to in them constitute to the entire agreement between you and us (the “Contract”). You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in these Terms or any document expressly referred to in them.

4.2 Where you are a consumer, you have legal rights in relation to Services that are not as described. Please see a legal representative for questions about your legal rights. Nothing in these Terms will affect these legal rights.

4.3 Where applicable, you may be entitled to a refund upon the cancellation of your service if requested. Please see our Refund Policy to review if you meet the requirements to be issued a refund.

5. How the Contract is formed between you and us

5.1 Our order process allows you to check and amend any errors before submitting your first order with us. Please take the time to read and check your order at each page and step of the order process.

5.2 After you place an order for Services, you will receive an e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted. Our acceptance of your order will take place as described in clause 5.3.

5.3 If you are ordering hosting services with us we will confirm our acceptance to you by sending you an e-mail (“Order Confirmation”). If you are ordering any other service, we will confirm our acceptance to you by sending you an invoice. The Contract between us will only be formed when we send you the Order Confirmation or invoice as described above.

5.4 The term of our contract for all services is as described in each invoice or quote you receive from us.

5.5 Unless the Contract is cancelled by either party in accordance with Section 12 below or is amended by agreement between us, the Contract will renew automatically for the same term as the previous Contract as the Price as described in Section 10 below.

5.6 If we are unable to supply you with the Services ordered, for example because of an error in the price on our site as referred to in Section 10.3, we will inform you of this by e-mail and we will not process your order. If you have already paid for the Services, we will refund you the full amount as soon as possible.

6. Our right to vary these terms

6.1 We may revise these Terms from time to time, including but not limited to the following circumstances:

1. Changes in how we accept payment from you; and
2. Changes in relevant laws and regulatory requirements

6.2 Every time you order Services from us or the Contract between us is renewed, the Terms in force at that time will apply to the Contract between you and us.

7. Providing Services

7.1 We will supply the Services to you from the date set out in the Order Confirmation, in the case of hosting services or other renewal service. In the case of invoice or other one-off service until the completion or renewal date set out in the Order Confirmation, Quote or Contract. Where no completion date or renewal date is specified, we will supply the Services until the Contract is terminated in accordance with the Terms.

7.2 Where the Order Confirmation or Quote sets out any milestones for the provision of Services, we will make every effort to complete the Services on time. However, there may be delays due to an Event Outside Our Control. See Section 17 for our responsibilities when an Event Outside Our Control happens.

7.3 We will need certain information from you that is necessary for us to provide the Services, for example, name, address, contract details. We will contact you about this. If you do not, after being asked by us, provide us with this information, or you provide us with incomplete or incorrect information, we may suspend the Services by giving you a written notice. We will not be liable for any delay or non-performance where you have not provided this information to us after we have asked. If we suspend the Services under this clause you do not have to pay for the Services while they are suspended, but this does not affect your obligation to pay for invoices we have already sent you.

7.4 You are responsible for obtaining:

1. Suitable licenses of third party software; and
2. backups of your Hosted Materials which must be stored externally to our systems; and
3. Any third party cooperation and consents, which are required for the full use of the Services. We will not be liable for any delay or non-performance where you have not provided such licenses or consents to us after we have asked.

7.5 We may have to suspend the Services if we have to address technical problems. We will contact you to let you know in advance where this occurs via our Client Area, unless the problem is urgent or an emergency. This does not affect your obligation to pay for any invoices we have already sent you.

7.6 Our distributed denial of service (“DDoS”) protection is a network wide solution that covers all of our infrastructure. It is capable of mitigating the majority of DDoS attacks, but if the attack is large enough then I.P. addresses, servers or websites may be black-holed or removed from the internet whilst the attack is in progress.

7.7 If you do not pay us for the Services by the due date for payment, as set out in Section 11, we may suspend the Services 10 days after the due date until you have paid us the outstanding amounts. We will contact you multiple times by email to tell you this. This does not affect our right to charge you interest under clause 11.3.

7.8 Implementation and Transition

1. We will make available the Services on or before the start date specified in the Order Confirmation
2. At your request and subject to our Free Migration offering, we will use reasonable endeavors to:
   1. Assist with the transfer of your website from your own development server; or
   2. Assist with the transition of any of your website(s) from any third party host.
3. During our scheduled server upgrades, we may provide an additional 28 day window for Domain Name System (“DNS”) modifications to be performed. This will be provided at our discretion and does not apply to all migrations.

7.9 Shared Hosting

1. Where the Services we provide to you include shared hosting, we will make available to you:
   1. Hosting capacity on a shared server meeting the specification set out on the site which may vary from time to time.
   2. The ability to access, update or amend any websites, web applications, software, information, data, databases and other works and materials stored, transmitted, published or processed using the Services (the “Hosted Materials”) by FTP or similar means.
   3. You warrant that any material that you display on the respective sites do not and will not infringe any applicable laws, regulations or display material which is obscene, indecent, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights (“Inappropriate Content”)
   4. For the avoidance of doubt, we will have administration rights in relation to any shared server, and we may refuse any request to change the configuration of a shared server at our sole discretion.
   5. With our Reseller Hosting accounts you can resell our web hosting and manage multiple websites with our fully white label plan. Please note that we will not support your customers directly. Please do not ask your customers to contact us for support. If your customers do contact us for support issues we will redirect them to you.
2. Managed Virtual Private Servers (“VPS”)
   1. Each Managed VPS has its own resource limits. If a Managed VPS has exhausted its resource we may contact you to advise you of that.
   2. If there are on-going problems with a Managed VPS that are caused by resource exhaustion and if you are persistently not taking our advice to upgrade the relevant resources, we may at our discretion remove management from our VPS. If we do this we will inform you.
   3. If we remove management from your VPS, you may upgrade your resource limits to reflect your systems’ requirements and return the VPS to being managed. However, unless you reduce your use of resources or upgrade your resources as needed, we may refuse management or cancel your managed VPS service.
   4. If management is removed from your VPS for any of the above reasons, you will become responsible for paying for any licenses that were included free of charge or at a discount within your managed VPS fee.
3. Virtual Private Server “VPS” and Dedicated Servers
   1. Where the Services we provide to you include a VPS/dedicated server, we will make available a VPS/dedicated server meeting the specification set out on our site, and we will grant you administration rights with respect to that server except where the services are managed, in which case we may refuse any request to change the configuration of the VPS/dedicated server at our sole discretion.
   2. For unmanaged dedicated servers you acknowledge that we will not provide support in connect with the administration of such VPS/dedicated server, and you warrant that you have all necessary expertise to configure, manage and keep the VPS/dedicated server secure at all times.
   3. You will not configure, or allow any other person to configure, a VPS/dedicated server in any way contrary to the guidelines published on our site from time to time.
   4. We may from time to time require that you apply software and/or hardware upgrades to the VPS/dedicated server.
   5. Un-managed dedicated systems are provided with a guarantee of power availability 100% of the time in any calendar month, and network connectivity availability 99.99% of the time in any calendar month, except where it has been necessary to explicitly black-hole access to an IP directing to your system to mitigate a DDoS attack against it as outlined in clause 7.6.
   6. A service credit equal to the service cost of any hours either resource is unavailable for greater than the time provided by this guarantee whenever this is not met will be provided to you on request only.
   7. For the avoidance of doubt, dedicated servers made available under this Contract will remain our property at all times and are not subject to any rent to own terms.

7.10 Email Hosting

1. Where the Services we provided to you include email transmission, storage and/or management services:
   1. We will provide POP3/IMAP/SMTP and webmail email services to you in accordance with the respective Services description.
   2. All shared hosting mailboxes will be protected by our anti-spam and anti-virus solution, SpamExperts.

7.11 Support

1. The Company will use reasonable endeavors to respond to requests for support in relation to our support Services.
2. For Agency Services, Managed VPS, Managed Dedicated Servers, Full Support and Emergency Support Services we will use reasonable endeavors to ensure that a member of our support staff can be reached by telephone at all times in the case of an emergency.

7.12 We may be limited in the Services we can offer by the rules and regulations set out by our suppliers. In particular this may limit or prevent us offering Services to customers in certain geographical areas. We have various suppliers who may apply such restrictions on us.

8. Intellectual Property Rights

8.1 For the purpose of this Contract, “Intellectual Property Rights” IP Rights, shall mean all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other IP Rights, whether registered or unregistered and including all applications for and renewals or extensions of such rights.

8.2 You retain all IP Rights in the software and materials that you provide to us and you grant us a license to such IP Rights to the extend required for us to perform our obligations pursuant to this Contract.

9. If there is a problem with the Services

9.1 In the unlikely event that there is a defect with the services:

1. Please contact us through our ticket system or via email and tell us as soon as reasonably possible (include details of your name, the respective domain and server if applicable);
2. Please give us a reasonable opportunity to repair or fix any defect; and
3. We will use every effort to repair or fix the defect as soon as reasonably practical and, in any event, within 2 working days.
4. You will not have to pay us to repair or fix a defect with the Services under Section 9.
5. If you are a consumer, you have legal rights in relation to Services not carried out with reasonable skill and care, or if the materials we use are faulty or not described. Please seek private legal counsel to discuss these rights. Nothing in these Terms will affect these legal rights.
6. An account may be terminated with immediate effect if abusive behavior is directed at our staff.

10. Price of Services

10.1 The prices for the Services will be as quoted on our site from time to time or as otherwise agreed between us.

10.2 Prices for our Services may change from time to time, but changes will not affect any order which we have confirmed with an Order Confirmation or with an invoice. If the price is set to increase, we will inform you with 30 days notice by email.

10.3 Our site contains a number of Services. It is always possible that, despite our reasonable efforts, some of the Services on our site may be incorrectly priced. If we discover an error in the price of the Services you have ordered we will inform you of this error and we will give you the option of continuing to purchase the Services at the correct price or cancelling your order. If we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing. Please note that if the pricing error is obvious and unmistakable and could have reasonably been recognized by you as a mispricing, we do not have to provide the Services to you at the incorrect (lower) price. If your order is cancelled, you will be issued a full refund.

10.4 Reduced price trials and free trials are for new clients only unless otherwise noted.

11. How to Pay

11.1 You can only pay for the Services using a debit or Credit card, Check by Mail, ACH or Bank Transfer. We accept the following cards: Visa, MasterCard, American Express and Discover.

1. To pay with Check by Mail see this support article.
2. Direct Bank Transfer is only available for Reseller accounts, Agency Services, and Enterprise Accounts. Please contact us to have this enabled in your account. Otherwise, please utilize Stripe ACH.

11.2 Payment for the Services is to be made in advance unless otherwise noted. Payment may be made monthly only unless otherwise agreed upon. We will not charge your debit card or credit card until we send you an Order Confirmation.

11.3 If you fail to make any payment due to us under this Contract by the due date (plus 5 days) then, without limiting our remedies under Section 11, you shall pay a fixed late fee on the overdue amount at whichever is greater of 10% or $2.50. You shall pay the penalty charge interest together with the overdue amount.

11.4 Adding your card or bank account to file authorizes us to auto bill you on your due date at 5AM Eastern Time. You can manage this via your Client Area. If you prefer manual billing instead of automatic billing, please contact us.

11.5 We use Stripe to process card and ACH payments. When you use our card or ACH payment system you confirm that you are permitting us to initiate a payment or series of payments on your behalf. You confirm that we may either take payments as a one-off or on a recurring basis as indicated on our payment page. You confirm that the payment amount will be determined by reference to our charges at the time as described on your invoice.

12. Termination

12.1 Either party (the “Non-defaulting Party”) shall be able to terminate this Contract immediately in the event that the other:

1. Commits a material breach of any of its obligations under this Contract and has not remedied such breach (if capable of remedy) within 30 days of request from the Non-defaulting Party for remedy by serving written notice.

12.2 Without prejudice to any rights that have accrued under a Contract or any of its rights or remedies, either party may terminate a Contract by giving not less than 30 days written notice to the other party. At our discretion we may accept requests to terminate Services in situations where you provide us with less than 30 days notice. You may be required to submit a cancellation request in the Client Area in order for us to process your cancellation. Notwithstanding the foregoing, if you have agreed and paid for Services on an annual or multi-year payment basis, we shall not be obliged to refund any pro rated payments if you cancel during the annual or multi-year term.

12.3 In accordance with our Acceptable Use Policy, an account may be terminated by us unilaterally, without notice and at our discretion if we consider an account holder to be in breach of the stated prohibited uses.

12.4 An account may be terminated with immediate effect if abusive behavior is direct at our staff.

13. Consequences of Termination

13.1 Other than as set out in these Terms, neither party shall have any further obligation to the other under a Contract after its termination.

13.2 Any provision of these Terms with expressly or by implication is intended to come into or continue in force on or after termination of a Contract shall remain in full force and effect.

13.3 Termination of a Contract, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

13.4 If a Contract is terminated pursuant to clause 12.2 or by you pursuant to clause 12.1:

1. We will make accessible to you by an electronic copy of the Hosted Materials if we still hold them at that point; and
2. We will provide such assistance as is reasonably requested by you to transfer the hosting of the Hosted Materials to you or another service provider, subject to payment of our reasonable expenses.

14. Our liability if you are a business

This Section 14 only applies if you are a business customer.

14.1 Nothing in these Terms limit or exclude our liability for:

1. Death or personal injury caused by our negligence;
2. Fraud or fraudulent misrepresentation; or
3. Any other area where it would be unlawful or invalid to seek to exclude liability.

14.2 Subject to clause 14.1, we will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

1. Any loss of profits, sales, business, or revenue;
2. Loss or corruption of data, information or software;
3. Loss of business opportunity;
4. Loss of anticipated savings;
5. Loss of goodwill;
6. Any indirect or consequential loss.

14.3 Subject to clause 14.1 and clause 14.2, our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Services in the previous twelve month period.

14.4 Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Services. Any representation, condition, or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Services are suitable for your purposes.

15. Our liability if you are a consumer

This Section 15 only applies if you are a consumer.

15.1 Nothing in these Terms limit or exclude our liability for:

1. Death or personal injury caused by our negligence;
2. Fraud or fraudulent misrepresentation; or
3. Any other area where it would be unlawful or invalid to seek to exclude liability.

15.2 If we fail to comply with these Terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breach of these Terms of our negligence, but subject to clause 15.1 above and subject to clause 15.4 below, we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of our breach or they were contemplated by you and us at the time we entered the contract.

15.3 We only supply the Services for domestic and private use. You agree not to use the Services for any commercial, business or re-sale purposes, and subject to clause 15.1 above, we have no liability to you for any

1. Loss of profits, sales, business, or revenue;
2. Loss or corruption of data, information or software;
3. Loss of business opportunity;
4. Loss of anticipated savings; or
5. Loss of goodwill.

15.4 Subject to the foregoing, out total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Services in the previous twelve month period.

16. Indemnity

16.1 You shall indemnify us against all liabilities, costs, expenses, damages, and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by us arising out of or in connection with:

1. Any breach by you of the warranties contained in Section 7; and
2. Any claim made against us for actual or alleged infringement of a third party’s IP Rights arising out of or in connection with the use of our software and/or other materials provided by you.

17. Events outside our control

17.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 17.2.

17.2 An ‘Event Outside Our Control’ means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks.

17.3 If an Event Outside Our Control takes place that affects the performance of our obligations under a Contract:

1. We will contact you as soon as reasonably possible to notify you; and
2. Our obligations under a Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control

18. Communications between us

18.1 When we refer, in these Terms, to ‘in writing’, this will include e-mail.

18.2 If you wish to contact us in writing, or if any clause in these Terms requires you to give us notice in writing, you can send this to us by email at legal@pinwheelweb.dev. We will confirm receipt of this by contacting you in writing by e-mail.

18.3 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide us in your order.

18.4 If you are a business, please note that any notice given by you to us, or by us to you, will be deemed received and properly served 1 business day after an e-mail is sent or 1 business day after posting on our website or client area. In proving the service of any notice, it will be sufficient to prove, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

19. Privacy Policy

19.1 Please read and understand our Privacy Policy as the terms of that document are also binding.

20. Other important terms

20.1 This Contract constitutes the entire agreement between you and us and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between you and us, whether written or oral, relating to its subject matter.

20.2 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Contract. Neither you nor we shall have any claim for innocent or negligent misrepresentation based upon any statement in this Contract.

20.3 You may not assign or transfer any of your rights or obligations under this Contract, in whole or in part, without our prior written consent.

20.4 A person who is not a party to this Contract shall not have any rights to enforce any of these Terms.

20.5 If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the provisions of this Contract shall not be affected.

20.6 If any invalid, unenforceable or illegal provision of this Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

20.7 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that does not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

20.8 These Terms and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with Georgia law in the United States of America.

20.9 The parties irrevocably agree that the courts of the State of Georgia in the United States of America have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).

20.10 Phone Calls and Video Calls may be recorded for training or monitoring purposes. In the even that a video call is recorded, you will receive an electronic copy to your email on file within 1 business day after closure of the call.

21. Changes to these Terms

21.1 We may revise these Terms at any time by amending this page. You are expected to check this page from time to time to take notice of any changes we make, as they are legally binding to you.

21.2 These Terms were last updated on [12/02/2024]