BSD (Beyond Shopify Development) Terms of Service

What you need know about this monthly partnership:

  1. Dedicated Support

    • Your subscription includes ongoing support from a dedicated team, including a Technical Project Manager, Shopify Developers, and Designers.
    • Once subscribed, you're able to add as many requests to your queue as you'd like, and they will be delivered one (Standard) or two (Pro) at a time.
    • We typically begin work within 3 days after gaining access to your store. This time allows us to get your work in the development cycle, connect our Github account, review your existing theme code, ask questions, etc.

  2. Billing and Cancellation

    • Subscriptions are billed monthly, with no refunds for unused services or partial months. You can still pause and cancel at any time.
    • The system will notify and unpause any subscription paused for longer than 6 months. You can re-pause if desired. 
    • Cancellation (not pausing) requires 4 days' written notice before the next billing cycle to avoid charges for the upcoming month. Services will continue until the end of the current billing period.

  3. Quarterly Weeks Off and Office Closures

    • The entire Fifth Effect office closes once a week each quarter for a team reset. Except for customer-breaking emergencies, we will be unreachable at this time. These do not impact your billing cycle but are accounted for in service planning.
    • You will receive a credit for planned office closures.
    • Emergency developers are on call during office closures. Additional charges may apply for emergency services not caused by our team.

  4. Refund Policy

    • There is a strict no-refund policy for payments made. Services will be provided until the end of the current billing cycle after a cancellation notice.
    • While we make a best effort to reply in a timely manner, we do not offer any SLA for reply or turnaround times.

  5. Work Acceptance Timeline

    • Clients have 3 business days to review and provide feedback on delivered work. If no feedback is received, the work is considered accepted. This is so we can proceed with your next task if available; further iterations can still be requested. 
    • To not interfere, accepted work that is not yet live will remain in a development theme until approval to push live.

  6. Ownership of Work

    • Ownership of work created specifically for you transfers immediately upon service commencement during a paid billing cycle. This includes design files and customized assets but excludes Fifth Effect’s foundational tools or pre-existing materials.

  7. Client Responsibilities

    • Clients are responsible for providing all necessary materials (e.g., brand copy, content, images) for projects and securing licenses for third-party fonts or assets as needed.

  8. Service Interruptions

    • In case of unforeseen service interruptions (e.g., technical difficulties, team unavailability), Fifth Effect will strive to minimize disruptions and notify clients promptly.

  9. Showcasing Work

    • Fifth Effect reserves the right to showcase completed projects on digital channels unless otherwise agreed upon in writing (e.g., via NDA).

The Legal Stuff:

 

1. Agreement Overview

This Terms of Use ("Agreement") constitutes a legally binding agreement between Fifth Effect, a Limited Liability Company organized under the laws of the State of Michigan ("Fifth Effect"), and the Client ("Client"). Failure to agree to and adhere to all terms, conditions, and obligations contained herein results in the prohibition of the Client's use of the Services, requiring immediate discontinuation. Except for ongoing obligations, such as payment for services rendered, the relationship between Client and Fifth Effect shall cease upon termination of this Agreement.

2. Service Plans

All Service Plans include the ongoing support of a Technical Project Manager to ensure project continuity and alignment with Client goals and a dedicated team of professionals. All parties must perform daily coordination, communications, and file sharing using Fifth Effect systems and following Fifth Effects process as described in our guidelines and communicated by Fifth Effect managers. 

Beyond Shopify Development

This subscription service provides ongoing Development, Web Design, and Consulting Support for your Shopify-based eCommerce business through a dedicated team of professionals, including but not limited to Technical Project Managers, Shopify Developers, and Web Designers. Our team will handle various tasks and projects, one (Standard Partnership) or two (Pro Partnership) project(s) at a time, ensuring focused and high-quality work. Fifth Effect will send the Client two weekly updates on closed, current, and upcoming projects.

Revenue Refinement Program

This subscription service provides monthly split-testing to increase revenue per visitor, profit per visitor, and/or conversion rate. This service includes research, test ideation, web design, development, monitoring, reporting, and implementation. This service also includes a Technical Project Manager who will communicate every step of the testing process to the Client, including two (2) weekly reports on running tests. The Client can combine Revenue Refinement with other services like Beyond Shopify Development. The cost for the testing app will be the Client's responsibility. 


Fifth Effect reserves the right to adjust, enhance, or revise these Service Plans at its sole discretion. Clients are encouraged to review the terms regularly to stay informed of any changes.

3. Cancellation and Renewal Policy

To discontinue the Service Plans provided by Fifth Effect, Clients must give clear and unequivocal written notice of cancellation at least seven (7) days before their next billing cycle renewal date. This advanced notice is crucial to avoid incurring charges for the upcoming period. The necessity of a 7-day notice period is due to the significant resource allocation and planning Fifth Effect undertakes to ensure that dedicated team members are available to deliver the high-quality service our Clients expect.

In the event that a Client fails to provide a 7-day notice of cancellation, the Client will be subject to the full charges of the subsequent billing period. These charges are non-refundable, as they compensate for the allocation and reservation of resources that may have been otherwise utilized for other projects. This policy ensures that Fifth Effect can maintain the highest level of dedicated service for all its active projects.

Clients are encouraged to consider their project timelines and plan cancellations accordingly to align with this policy. Fifth Effect remains committed to providing clear and transparent communication regarding renewal dates and will send reminders to Clients to aid in this process. Any intent to cancel must be communicated directly to Fifth Effect's designated contact channels to be considered valid.

4. Acceptance of Work

Fifth Effect provides a review period of three (3) business days following the delivery of work for the Client to evaluate and provide feedback. The Client’s input is invaluable for ensuring the final product meets their expectations.

Should Fifth Effect not receive feedback or revision requests within three (3) business days post-delivery, the work will be considered accepted by the Client, and the Fifth Effect team will move forward with the next task. This acceptance is procedural and does not prevent the Client from providing additional feedback or requesting iterations afterward. Fifth Effect is committed to accommodating further refinements; however, it is understood that this will not delay the ongoing project timeline or the subscription billing cycle.

We encourage Clients to provide timely feedback to align with the project's momentum but understand that iteration is a natural part of the creative process. Fifth Effect is happy to continue iterating on the delivered work to ensure that the Client's vision is fully realized, while also maintaining the pace of project development.

5. Pricing Plans and Refund Policy

Clients have the flexibility to cancel their Fifth Effect subscription; however, a notice of cancellation must be submitted in writing at least seven (7) days prior to the end of the current billing cycle. This notice period is crucial as resources, including dedicated team members, are allocated based on anticipated project continuation. Therefore, Fifth Effect does not offer refunds once these resources have been assigned and work has commenced.

In the event that a Client submits a cancellation notice, Fifth Effect will continue to provide services until the current billing cycle is completed. There are no refunds for any portion of the services that have been unused within this billing period. Following the submission of the cancellation notice, the subscription will not be renewed, and no further charges will be incurred after the end of the billing cycle in which the cancellation notice period concludes.

Please be advised that there are no refunds for partial months of service, and any cancellation request must adhere to the 7-day notice requirement to avoid billing for the subsequent period.

6. Intellectual Property Rights

Clients of Fifth Effect pay in advance for each month of service. Consequently, ownership of all works created specifically for the Client during a given billing cycle is transferred to the Client immediately upon commencement of that cycle's service. This includes but is not limited to, brand assets, website designs, and customized graphics created as part of the service agreement.

While Fifth Effect retains all rights to its foundational and underlying Content, such as software, design frameworks, trademarks, logos, and pre-existing text, graphics, and media (collectively, the “Content”), the specific works produced for a Client during the paid service period are the Client's property from the point service delivery begins for that billing cycle.

These works, once created and delivered within the scope of a paid billing cycle, are protected under the Client's ownership by copyright laws and regulations of the United States and foreign jurisdictions and international conventions, as applicable.

7. Ownership of Materials

Consistent with the Intellectual Property Rights section, while Fifth Effect retains ownership of its proprietary materials and general content used in the creation process, the Client obtains full ownership of the final, delivered project work. This includes all design and original source files created specifically for the Client’s project. Upon full payment for the respective service, the Client shall be the sole owner of the copyright for all completed projects. It should be noted that this transfer of ownership pertains only to the final, custom-created works and does not include Fifth Effect’s underlying tools, methods, or pre-existing materials.

8. Fonts

In the event that any Project incorporates fonts not owned by Fifth Effect and requires a commercial license for legal reproduction, distribution, or public display, Fifth Effect will inform the Client in writing. The Client will need to purchase the appropriate licenses for the Third-Party Fonts. The Client assumes all responsibility for consequences due to failure to purchase the required licenses for any Third-Party Fonts incorporated into a Project.

9. Client Representations

By using the Services, Client represents and warrants that:

  • Client has the legal capacity and agrees to comply with these Terms of Use;

  • Client is not a minor;

  • Client will not access the Services through automated or non-human means;

  • Client will not use the Services for any illegal or unauthorized purpose;

  • Client’s use of the Services will not violate any applicable law or regulation.

10. Prohibited Activities

Clients shall use the services provided by Fifth Effect solely for lawful purposes and in accordance with the intended use of these services. Specifically, the creative content and materials produced by Fifth Effect are to be used by the Client in a manner that aligns with the agreed-upon project scope and is consistent with the terms of the service plan selected. Clients are prohibited from:

  • Reselling, redistributing, or otherwise exploiting the services or content created by Fifth Effect for unauthorized commercial purposes.

  • Using the services or content created in any way that infringes upon the intellectual property rights of others, including but not limited to unauthorized reproduction, modification, or distribution.

  • Engaging in any activity that is illegal, fraudulent, or violates the rights of any third party.

Fifth Effect’s services should be used in a manner that respects the integrity of the creative process and adheres to the legal and ethical standards of content creation and usage.

11. Feedback

Client acknowledges and agrees that any questions, comments, suggestions, or other feedback related to the services provided by Fifth Effect ("Feedback") must be communicated through the channels designated by Fifth Effect. This ensures that Feedback is properly recorded and addressed. Fifth Effect shall retain ownership of all Feedback and is under no obligation to keep it confidential.

Fifth Effect is not liable for any oversight or failure to act on Feedback that is not shared through the designated channels. Clients are encouraged to use these platforms for all communication regarding Feedback to ensure it is duly noted and appropriately responded to.

12. Oversight

Fifth Effect reserves the right to monitor the Services for violations of these Terms of Use and to take appropriate legal action against violations. Fifth Effect further reserves the right to restrict or deny access to the Services or disable the Client’s use of the Services without notice or liability.

13. Returns and Refunds

Fifth Effect maintains a strict no-refund policy on all payments made for services. This is in line with our 7-day cancellation notice requirement as detailed in the "Cancellation and Renewal Policy" section. Clients wishing to cancel their subscription must provide written notice at least seven (7) days prior to their next billing cycle to prevent charges for the subsequent period.

Despite this policy, Fifth Effect is committed to delivering the promised services for the entirety of the current billing cycle, even if a cancellation request is received. No refunds will be issued for any cancellations, including those made within the 7-day notice period, as this timeframe is necessary for us to efficiently reallocate resources and maintain the high-quality service our Clients expect.

14. Modifications to Terms of Use

Fifth Effect reserves the right to change, alter, modify, or remove any content on the Services at its sole discretion. Fifth Effect reserves the right to modify or discontinue all or part of the Services without notice and without liability to the Client.

15. Interruptions

There may be occasions where service interruptions occur due to factors beyond our control. These may include, but are not limited to, unforeseen circumstances such as team member unavailability, technical difficulties, or external factors impacting our ability to deliver services.

In the event of such interruptions, Fifth Effect shall not be liable for any loss, damage, or inconvenience caused by the Client’s inability to receive the services during these periods. We are committed to minimizing any disruptions and will endeavor to notify Clients of any significant interruptions and resume services as promptly as possible.

16. Governing Law

These Terms of Use shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflict of law principles.

17. Limitations of Liability and Indemnification

Limitations of Liability:

Except as otherwise provided in the indemnification obligations below, under no circumstances shall Fifth Effect, its directors, employees, members, contractors, or agents be liable for any direct, indirect, incidental, special, consequential, or punitive damages, including but not limited to lost profits, data, or use, incurred by the Client or any third party, whether in an action in contract or tort, arising from the Client’s access to, or use of, the Services provided.

Indemnification:

  • Fifth Effect shall indemnify, defend, and hold harmless the Client from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of any claim or action by a third party alleging that the use of the design work produced by Fifth Effect as delivered to the Client and used in accordance with the terms of this Agreement infringes the intellectual property rights of such third party.

  • The Client agrees to indemnify, defend, and hold harmless Fifth Effect against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of any claim or action by a third party alleging that the use of the Services in a manner not authorized by this Agreement, or the Client’s modification of the design work, infringes the intellectual property rights of such third party.

The indemnification obligations set forth above are conditioned on the indemnified party:

  • (a) promptly notifying the indemnifying party in writing of any claim or action;

  • (b) giving the indemnifying party exclusive control and authority over the defense or settlement of such claim or action;

  • (c) providing assistance in connection with the defense or settlement of such claim or action at the indemnifying party’s request and expense.

Notwithstanding the foregoing, the total liability of each party under the indemnification obligations shall not exceed the total amount paid to Fifth Effect by the Client under this Agreement within the 12-month period preceding the claim.

The indemnifications set forth above shall not apply to the extent that the alleged infringement arises from:

  • (a) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Fifth Effect or not authorized by Fifth Effect in writing;

  • (b) modifications to the Services by anyone other than Fifth Effect;

  • (c) the Client's failure to use updates or modifications to the Services that Fifth Effect has provided specifically to avoid infringement; or

  • (d) the Client’s failure to secure appropriate rights, licenses, consents, or permissions required for third-party assets the Client directs Fifth Effect to incorporate into the design work.

Both parties acknowledge that the limitations and exclusions of liability and indemnity in this agreement are fundamental elements of the basis of the bargain between Fifth Effect and the Client, with the exception that these limitations do not apply to the indemnifiable losses as set forth above.

18. Client Data

The Client is responsible for providing all necessary data and materials required for Fifth Effect to perform its services. This includes, but is not limited to, specific project requirements, content, images, or any other information relevant to the completion of the services.

While Fifth Effect takes reasonable measures to safeguard the data provided by the Client during the service process, it shall not be liable for any loss, corruption, or compromise of such data. Clients are advised to maintain backups and copies of all materials provided to Fifth Effect. In the event of any loss or corruption of data, Fifth Effect will endeavor to assist in the recovery process to the best of its ability, but it cannot guarantee the restoration of lost or corrupted data.

19. Electronic Delivery of Materials

Client consents to receive electronic communications from Fifth Effect and agrees that all agreements, notices, disclosures, and other communications sent electronically satisfy legal requirements for written communication.

20. Showcasing Work

Fifth Effect reserves the right to showcase design and development work and testing results on digital channels unless otherwise agreed upon through a Non-Disclosure Agreement (NDA) to protect sensitive information.

21. Termination

These Terms of Use remain in effect until terminated by the Client or Fifth Effect. Clients may terminate their agreement in accordance with the cancellation policy outlined in the "Pricing Plans and Refund Policy" section. Fifth Effect reserves the right to terminate this Agreement at any time, with reasonable notice to the Client, unless in cases of breach by the Client, including but not limited to non-payment and violation of these Terms of Use. Fifth Effect may also suspend or terminate Client's access to the Services for any substantial breach of these terms.

Upon termination, all rights and obligations of both parties, save for those explicitly stated as surviving the termination (such as payment obligations for services already rendered, confidentiality, and ownership of materials), will cease. Fifth Effect will take reasonable steps to ensure a smooth transition and minimize disruption to the Client's ongoing projects.

22. Contact Information

For questions or comments regarding these Terms, please contact:
Fifth Effect, LLC
607 Shelby St. Suite 700-1034
Detroit, MI 48226
Email: hello@fiftheffect.com