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Terms of Service
COMPANY MASTER PROJECT AGREEMENT This Company Master Project Agreement (the "Agreement") is entered into 04/25/24 by and between SEMIFY, LLC, a Virginia limited liability company, located at 46 Sager Dr, Suite B, Rochester, NY 14607 (the "Company") and the Internet end-user approving this Master Project Aggrement (the "Client") (as used herein, the Company and Client may be collectively referred to as the "Parties" or individually as a "Party", where no distinction is required) and is made in reference to the following facts: RECITALS (A) The Client wishes to engage, and Company wishes to provide, search engine optimization ("SEO"), search engine marketing ("SEM"), internet marketing and other services to the Client based on the terms and conditions set out in this Agreement, and Client and Company desire to enter into this Agreement to set forth their understanding of the terms and conditions under which such services shall be provided by the Company to the Client. NOW, THEREFORE, for and in consideration of the foregoing and the mutual covenants and agreements hereinafter contained, and other good and valuable consideration, the receipt of which is hereby acknowledged by each Party, the Parties hereto agree as follows: 1. Recitals. The statements contained in the recitals of fact set forth above (the "Recitals") are true and correct, and the Recitals are by this reference agreed to and made a part of this Agreement. 2. Definitions (a) "Application Server" means the computer(s), server(s) and database(s) owned and operated by Company for the purpose of hosting the Licensed Software for access over the Internet. (b) "Authorized Users" means the number and type of individuals authorized to access and use the Licensed Software on the Application Server, as specified in the applicable SOW. (c) "Confidential Information" means any and all non-public information disclosed in connection with any discussions and negotiations leading to this Agreement or in connection with performing under this Agreement, except for information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving Party, generally known or available; (ii) is known by the receiving Party at the time of receiving such information; (iii) is hereafter furnished to the receiving Party by a third Party without restriction on disclosure; (iv) is independently developed by the receiving Party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of written permission prior to disclose provided by the disclosing Party. (d) "Client Customer Data" means data collected, used or disclosed by or on behalf of Client or Customers for processing by the Licensed Software or for use in delivering the services described in an applicable SOW. (c) "Licensed Software" means the Semify ASP computer program and database(s) and any third Party software embedded in the Semify computer program and database that Semify licenses to Licensee in connection with this Agreement (and any and all updates or modifications thereto) specified in the applicable SOW. (d) "Proprietary Rights" means any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, domain names, trade dress, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property. 2. Services to be Rendered by and Duties of Company; Compensation. (a) Generally. The Client engages the Company and the Company accepts the Clients' engagement to initially provide SEO and/or SEM services, and if agreed to by the Client and Company in writing, other services as may be agreed, to the Client (the SEO and/or SEM services and other services as may be agreed to by the Client and Company from time to time may be hereinafter collectively referred to as the "Services"). The Client and Company will enter into supplementary contracts ("Statements Of Work" or "SOW(s)"), which may include, amongst other matters, terms specifying the Services to be provided to the Client, start and completion dates, and the compensation payable to the Company for the Services to be rendered by Company pursuant to the SOW. The terms and provisions of this Agreement shall apply to and control the overall relationship and provisions of service by Company to the Client, including Services to be rendered by the Company to the Client under any and all SOW(s), and in the event of a conflict or inconsistency between any provisions of a SOW and this Agreement, the provisions of the SOW shall govern and control. The Statements Of Work are unique for each project or order and shall be substantially in the format attached to this Agreement as Exhibit "A", as the same may be modified by the Client from time to time. SOW's may also be evidenced by electronic data transmitted between Client and Company, as facilitated through the Company's online order system. In any case, each SOW will require formal signoff approval by the Client, which will be considered binding. (b) License Grant. Subject to the terms and conditions contained herein, Company hereby grants Client, the "Licensee", the non-exclusive rights to, in accordance with the parameters and terms and conditions of the applicable SOW, for Authorized Users to: (1) access and execute the Licensed Software on the application server with supported browsers and through the Internet from any location worldwide; (2) transmit Licensee customer data to and from the Licensed Software to the Licensee Customer with supported browsers and through the Internet from any location worldwide; and (3) transmit Licensee data to and from the Licensed Software to Licensee with supported browsers and through the Internet from any location worldwide ("License"). Except as specifically provided herein or the applicable SOW, the Authorized Users shall access and use the Licensed Software only for the support of services defined in this Agreement. Licensee will not permit the Licensed Software to be accessed or used by or for the benefit of any third Parties. Licensee further acknowledges and agrees that: (i) it shall not have the right to relicense or otherwise sell rights to access or use the Licensed Software, or to transfer or assign rights to access or use the Licensed Software; (ii) all rights not expressly granted to Licensee herein are expressly reserved by Company. 3. Payment of Compensation. The Client agrees to pay the Company compensation for the Services agreed upon between the Client and the Company as set out in this Agreement or a SOW, as applicable. Payments shall be made on the first of each month, collected via credit card charge for Services to be rendered by the Company in that month. Invoices with payment terms may be used as an alternate method to collect payments from Client provided it is agreed upon in writing by Company in the applicable SOW. For any new SOW that initiates service on any day other than the first of the month, a prorated fee for the remaining days in that month will be charged prior to the initiation of Services. For example, if a new SOW initiates service on the 5th day of a month containing 31 days, the amount due from Client to the Company will be equal to 26/31 of the fees for a full month. 4. Ownership of Information, Software Data and Materials. (a) Company. Unless otherwise mutually agreed to in a SOW, all right, title and interest in and to the Licensed Software (including, without limitation, all upgrades, modifications and other alterations to the Licensed Software, the documentation as well as all other documentation related to the Licensed Software, the database systems and software of Company, any Company confidential information, and all software installed on the Application Server or operating as part of Companys' web site), as well as all of the Company Proprietary Rights of each of the foregoing, shall remain in and be the sole and exclusive property of Company and/or its licensors. It is mutually understood that Client has no interest in or rights to the Licensed Software or any other asset (tangible or intangible) owned, used or possessed by Company pursuant to this Agreement or a SOW, other than the right to access, use and configure the Licensed Software pursuant to this Agreement hereof and any applicable SOW, Client shall not alter, change or remove any proprietary notice or confidentiality legend placed on or contained within or upon Application Server operating as part of Companys' web site, the Licensed Software, or any other software installed on Application Server. Without limiting the generality of the foregoing, except as expressly provided herein, Client shall have no right to receive, review or use the source code. (b) Client. Client Data and all Client Confidential Information are proprietary to Client and title thereto will remain the sole and exclusive property of Client. As between Client and Company, Client owns Client Data, Client Confidential Information, Client Customer Data, and all Client Customer Confidential Information. 5. Confidentiality (a) Company Confidential Information. Client acknowledges and agrees that Confidential Information disclosed by Company to Client including, without limitation, the Licensed Software, Companys' Proprietary Rights to the Licensed Software and the software installed on the Application Server (and Companys' Proprietary Rights therein) embodies logic, design, coding, methodology and other trade secrets (collectively, "Company Confidential Information") and shall be held as confidential by the Client and Client shall not, except as specifically provided in this Agreement, disclose or use such Company Confidential Information for any purpose. Client shall safeguard Company Confidential Information using the same standard of care that Client uses for its confidential information, but in no event less than reasonable care. (b) Client Confidential Information. Company acknowledges and agrees that Confidential Information disclosed by Client to Company (collectively, "Client Confidential Information") shall be held as confidential by Company and Company shall not, except as specifically provided in this Agreement, disclose or use such Client Confidential Information for any purpose. Company shall safeguard the Client Confidential Information using the same standard of care that Company uses for its confidential information, but in no event less than reasonable care. 6. Indemnity. Each Party ("Indemnifying Party") will defend, indemnify, and hold harmless the other Party ("Indemnified Party") and its officers, directors, members, managers, employees, agents, independent Companys, attorneys, legal representatives, successors, and assigns from and against any and all third Party claims, actions and damages (including reasonable attorney's fees and expenses) incurred by the Indemnified Party and arising from, relating to, or in connection with the (1) gross negligence, fraud or criminal conduct of the Indemnifying Party or any independent Companys or subCompanys hired by the Indemnifying Party, (2) a violation of any applicable law by Indemnifying Party or any independent Companys or subCompanys hired by the Indemnifying Party, as determined by a court of competent jurisdiction, in connection with the performance of its duties and obligations under this Agreement; provided, however, that the Indemnified Party: (1) promptly notifies the Indemnifying Party, in writing, of such claim as soon as practical after gaining knowledge thereof; (2) gives the Indemnifying Party sole control of the defense and settlement of such claim; and (3) provides the Indemnifying Party, at no charge, all reasonable assistance in connection with the defense and settlement of such claim. The Indemnifying Party may settle such claim or proceeding with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. The Indemnified Party cannot settle such claim or proceeding without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. 7. Limit of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL OR DATA) ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF AN EMPLOYEE, AGENT OR OTHER REPRESENTATIVE OF THE PARTY CLAIMED TO HAVE CAUSED SUCH DAMAGE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EXCEPT WITH RESPECT TO THE PAYMENT OBLIGATIONS OF CLIENT, THE AGGREGATE LIABLITY OF COMPANY AND CLIENT FOR ALL CLAIMS AND DAMAGES ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE NET AMOUNTS CLIENT PAID TO COMPANY FOR A SPECIFIC SOW, AND IN NO EVENT SHALL THE AGGREGATE LIABILITY TO COMPANY EXCEED THE NET AMOUNTS PAID BY CLIENT TO COMPANY UNDER THIS ENTIRE AGREEMENT. FURTHERMORE, COMPANY WILL HAVE NO LIABILITY IN CONNECTION WITH THE FUNCTIONALITY OR CONETNT OF ANY SEARCH PROVIDER OR INTERNET PUBLISHER OR WEBSITE NOT OWNED BY COMPANY. 8. Term. This Agreement and any SOW issued under it shall remain in full force and effect until and unless this Agreement or such SOW is terminated by Company or Client in the manner hereinafter provided. Notwithstanding anything contained in this Agreement or any SOW to the contrary, the Client and Company shall each be free to terminate this Agreement or any applicable SOW at any time without penalty upon ninety (90) days prior written notice to the other Party for any reason or no reason whatsoever, and with respect to a SOW, as otherwise provided in the applicable SOW. This Agreement or any SOW may also be terminated thirty (30) days after the delivery of written notice to a defaulting Party specifying with particularity the provisions of this Agreement or any SOW that the defaulting Party is failing to adhere to, unless such defaulting Party cures such default within such thirty (30) day period. Upon termination of any SOW, Company will be relieved from all obligations it would otherwise have with respect to such SOW for periods from and after the effective date of such termination, and any compensation owed to the Company with respect to such SOW shall terminate as of the date of termination of such SOW. Upon the termination of this Agreement, Company will be relieved from all obligations it would have with respect to any future Services contemplated to be provided by Company to the Client, and all rights of the Company to receive compensation for the period from and after the effective date of such termination shall cease and be null, void and of no further force or effect, but notwithstanding the foregoing, the termination of a SOW or this Agreement shall have no effect on the provisions of this Agreement relating to ownership of materials, products, ideas and the like, confidentiality, non-competition, non-solicitation and the like, all of which shall survive the termination of this Agreement and shall remain in full force and effect and binding on Company and its Agents as specified in this Agreement. 9. Notices. Any notice required or permitted to be given pursuant to the provisions of this Agreement shall be sufficient if in writing and if personally delivered to the Party to be notified (including by fax) or sent by registered or certified mail, postage prepaid, return receipt requested, to the Parties at the following addresses: If to the Client: Using the email address used for registration. If to Company: SEMIFY, LLC Attn: Adam Stetzer, CEO 46 Sager Dr Rochester, NY 14607 The above addresses may be changed by the applicable Party to this Agreement as to such Party by providing the other Party hereto with notice of any such address change in the same manner provided above, which address change shall be effective upon receipt of such notice by the other Party hereto. All notices shall be effective upon receipt; provided, however, in the event any such notice properly sent is returned to the sender as undeliverable, or delivery refused, etc., the same shall be deemed received by the Party to whom it was addressed on the date the same was originally transmitted by the sender. 10. Binding Effect. Subject to compliance with the provisions of this Agreement regarding assignment, this Agreement shall inure to the benefit of and be binding upon Company and the Client, and their respective heirs, personal representatives, successors and assigns. 11. Governing Law; Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of New York applicable to contracts executed and to be performed entirely within the State of New York and without reference to conflicts of laws. Venue for any litigation related to this Agreement shall only be in any of the state courts located in Monroe County, New York, or if applicable, the Federal District Court for the New York, and each Party consents to the jurisdiction and venue of such courts, and waives any claims or contentions that such forum or venue is not convenient for them. 12. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but in the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby and shall be enforced to the greatest extent permitted by law, and there shall be inserted, in lieu of the invalid or unenforceable provision, a provision which is valid and enforceable and which as nearly as practicable carries out the intent of the provision held to be invalid or unenforceable. 13. Attorneys' Fees. Should a Party hereto retain counsel for the purpose of enforcing or preventing the breach of any provision hereof, including, without limitation, the institution of any action or proceeding to enforce any provision hereof, for damages by reason of any alleged breach of any provision hereof, for a declaration of such Party's rights or obligations hereunder or for any other judicial remedy, the prevailing Party shall be entitled, in addition to such other relief as may be granted in such action or proceeding (whether in arbitration, at trial or on appeal) to be reimbursed by the nonprevailing Party for all reasonable costs and expenses incurred thereby, including, without limitation, reasonable attorneys' fees and costs for services rendered to such prevailing Party in connection therewith. 14. Trial By Jury. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY IN ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT. 15. Entire Agreement. This Agreement and any SOW's issued in connection herewith, contains the entire understanding between the Parties hereto concerning the subject matter addressed herein. There are no representations, agreements, arrangements, or understandings, oral or written, between or among the Parties hereto, relating to the subject matter of this Agreement, which are not fully expressed herein or in an applicable SOW. This Agreement may not be changed orally but only by an agreement in writing signed by the Party against whom enforcement of any waiver, change, modification, extension or discharge is sought. The terms and provisions of this Agreement shall apply to all future engagements or services rendered by Company to the Client, including pursuant to the SOWs issued from time to time. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which counterparts taken together shall constitute one and the same agreement. In addition, this Agreement may contain more than one counterpart of the signature page, and this Agreement may be executed by the affixing of the signatures of each of the Parties to one of such counterpart signature pages, all of such counterpart signature pages shall be read as one, and they shall have the same force and effect as though all of the signers have signed a single signature page. The Parties agree that xerox and fax copies of this Agreement containing a copy of the signature of the Parties shall be deemed an original for all purposes, and the production of an original shall not be required. 17. Survival. The terms and provisions of this Agreement that, by their logical import, are to survive a termination of this Agreement shall survive the termination of this Agreement and be fully enforceable by each Party. Thus, by way of illustration and not in limitation, the provisions of Sections 2(c) pertaining to ownership of and rights to Information, Software, Data and Materials, Sections 3 through 9, and Sections 11 through 29, shall survive any termination or expiration of this Agreement on account of any reason whatsoever. IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written. COMPANY: SEMIFY, LLC, a Virginia limited liability company Date: 04/25/24
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