Master Services Agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement (the “Agreement”) is entered into as of ___________________, 20__ (the “Effective Date”) by and between Healthy Roster, Inc, a Delaware Corporation ("Healthy Roster" or "Licensor"), and _____________, a ________________________ ("Licensee" or “Customer”), each a “Party” and together the “Parties”.

WHEREAS, Healthy Roster has developed and owns certain proprietary software for use in the management and assessment of athlete health;

WHEREAS, Licensee desires to obtain the right to utilize such software; and

WHEREAS, Healthy Roster and Licensee believe it is in their mutual interest to enter into an agreement whereby Licensee would obtain a license to use such software pursuant to the terms and conditions hereinafter provided.

NOW, THEREFORE, In consideration of the premises and the mutual covenants of this Agreement, the Parties hereto agree as follows:

1.  DEFINITIONS. For purposes of this Agreement, the following terms shall have the following meanings:

a. Documentation:  Collectively: (i) all of the written, printed, electronic, or materials in any format that are published or otherwise made available by Healthy Roster to Licensee that relate to the technical aspects of the Software including its functional, operational, and/or performance capabilities; and, (ii) all user, operator, system administration, technical, support, and other manuals and all other written, printed, electronic, or other format materials published or otherwise made available by Healthy Roster that describe the functional, operational, and/or performance capabilities of the Software. Documentation shall not include source code or executable(s).

b. EMR Software:  The Healthy Roster software application that includes the web version and the mobile software application that runs on a mobile device, including but not limited to Apple® iPhone® and iPad® devices, and mobile phones and tablets running the Android® operating system and other mobile hardware and operating systems as applicable.

c. Healthy Roster Intellectual Property:  all proprietary rights and materials owned or controlled by Healthy Roster relating to the Software or Healthy Roster’s business including, but not limited to, Trade Secrets, copyrights, inventions (whether patentable or not), concepts, ideas, methods, techniques, formulae, algorithms, logic designs, screen displays, schematics, source and object code, and computer programs, together with all intellectual property rights therein.

d. Order Form: An order between Healthy Roster and Licensee that references this Agreement.

e. Profile:  A profile created in the Software representing an individual who will be assessed using the Software.

f.  Site:  Healthy Roster's website, including but not limited to healthroster.com, swaymedical.com, and such other Internet addresses as may be utilized by the Licensor.

g. Software:  The Healthy Roster or Sway Medical Software Applications, which includes the EMR Software and the Sway Mobile Application, along with any associated mobile application, media, databases, printed and online Documentation, and other materials provided by Licensor to Licensee. Software also includes Healthy Roster’s web-based portal, the Site, and other computer code that might be developed by Healthy Roster for use by Licensee. Software also includes all versions, updates, enhancements, extensions, and corrections to each of the foregoing used by Licensee.

h. Sway Mobile Application:  The Sway Medical, Inc., software application that runs on a hand-held mobile device, including but not limited to Apple® iPhone® and iPad® devices, and mobile phones and tablets running the Android® operating system and other mobile hardware and operating systems as applicable.

i. Trade Secret:  Without limitation, any scientific or technical data, information, design, process, procedure, formula, or improvement that derives independent economic value, actual or potential, from not being generally known or readily ascertainable by others and that is subject to reasonable efforts by Healthy Roster to maintain its secrecy.

j. User:  An employee, agent, contractor, service provider, or other related party of Licensee who has been trained in the use of the Software and operates it with the permission of Licensee.

2. LICENSE

a. Subject to the terms of this Agreement and timely payment of any Fees due and compliance with all other terms and conditions hereunder, Healthy Roster hereby grants to Licensee, and Licensee accepts, a non-exclusive, non-sublicensable, and nontransferable license to access and use the Software and Documentation during the Term solely for a User, and solely for Licensee’s internal business purposes. All other uses are prohibited.

b. Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall use reasonable efforts to make all Users aware of this Agreement's provisions as applicable to such User's use of the Software and shall cause Users to comply with such provisions.

3. FEES

a. Licensee shall pay to Licensor the fees as set forth in Exhibit A based on the products, package type, the number of Profiles, and the number of Users requested and/or used by Licensee (the “Fees”). All Fees are non-refundable and non-cancelable.

b. During any Term, should Licensee increase the number of Profiles or Users, Healthy Roster shall notify Licensee of such overage, at which time Licensee shall pay any additional fees due based on the actual number of Profiles or Users.

c. Healthy Roster may, at its discretion, amend the Fees reflected in Exhibit A by providing notice to Licensee of any such change in pricing no later than 30 days prior to the expiration of the then-current Term.

d. All Fees are payable within thirty (30) days of invoice. Any amounts payable under this Agreement not timely paid will accrue interest at the lower of 2% per month or at the maximum rate allowed by law. Licensee shall pay Healthy Roster all such interest and costs of collection, including but not limited to, attorneys’ fees and court costs.

4. ACCOUNT AND PASSWORD

For each User, a password-protected account will be created, providing access to the Software (an “Account”). Licensee is responsible for maintaining the confidentiality of all Accounts and associated passwords. Healthy Roster reserves the right to refuse service, terminate or suspend Accounts, remove or edit content, or cancel logins in its sole and absolute discretion. Licensee agrees to accept full responsibility for all activities that occur under a User’s Account.

5. RESTRICTIONS

Licensee may not at any time, directly or indirectly, and shall not permit any Users to: (i) use the Software for the direct benefit of, or for purpose of rendering services to, any third-party business entity or organization; (ii) modify, translate, reverse engineer, disassemble or decompile the Software; (iii) create or attempt to create any derivative works of the Software or Documentation; or, (iv) permit or assist others in performing any of the foregoing.

6. DATA COLLECTION AND USE

a. User Data. When an Account is created, certain personal information about the associated User (such as name, contact information, login credentials) is required and will be collected, stored, processed, and retained by Healthy Roster (“User Data”). Healthy Roster may use User Data to communicate with Licensee and its Users.

b. Profile Data. In connection with Licensee and its Users' use of the Software,  certain information and data related to identified individuals may be obtained, transmitted, and stored by Healthy Roster through user input and through tests or assessments performed using the Software (the “Profile Data”). Between the Parties, Licensee retains all rights, title, and interest in and to Profile Data. Healthy Roster shall use Profile Data solely as necessary to provide and support the Software in accordance with this Agreement and, to the extent applicable, the BAA. Healthy Roster shall not use the Profile Data that identifies an individual for any purpose other than in furtherance of this Agreement or as otherwise provided by law or the applicable individual’s authorization.

c. De-Identified and Aggregated Data. Healthy Roster may create and use data derived from the Profile Data that has been de-identified and aggregated in accordance with applicable law that does not reasonably identify an individual (“De-Identified Data”). Healthy Roster retains all right, title, and interest in such De-Identified Data and may use it for any lawful purpose, including, without limitation, analytics, benchmarking, research, statistical analysis, product development, and improvement of the Software.

d. Disclosure Required by Law. Should Healthy Roster be required to disclose Profile Data with a third party in response to an order from a court of competent jurisdiction or in similar circumstances, Healthy Roster will notify Licensee of such request as soon as practical and reasonably cooperate with Licensee in seeking protective treatment of such information.

7. USE AND DISCLOSURE OF PHI

The Parties acknowledge that certain services provided under this Agreement may involve Protected Health Information (“PHI”) and may be subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, and its implementing regulations. The Parties agree to enter into a separate Business Associate Agreement (the “BAA”)attached hereto as Exhibit B and incorporated by reference into this Agreement, which shall govern the Parties’ respective rights and obligations with respect to PHI and shall control in the event of any conflict with this Agreement.

The Parties further acknowledge that certain data may be subject to the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and its implementing regulations, to the extent applicable.

8. TERM AND TERMINATION

a. This Agreement will begin on the Effective Date and continue until all Order Forms have expired or terminated, or until such earlier date upon which the Agreement is terminated in accordance with the terms of this Agreement (the “Term”).

b. This Agreement may be terminated by Licensee upon a breach by Healthy Roster of any material term of this Agreement, which is not cured by Healthy Roster within thirty (30) days’ notice thereof from Licensee.

c. Healthy Roster may suspend Licensee’s access to the Software upon written notice in the event that Licensee breaches this Agreement, or where Healthy Roster reasonably believes such action is necessary to protect the security or integrity of the Software or any data thereon.

d.  Healthy Roster may terminate this Agreement upon a breach by Licensee of any material term of this Agreement, which is not cured by Licensee within thirty (30) days’ notice thereof from Healthy Roster. Further, in the event Licensee fails to timely pay any amounts due hereunder, Healthy Roster may terminate this Agreement upon ten (10) days’ notice to Licensee.

e. No refund of payments previously made hereunder shall be due to Licensee except in a case of (i) termination by Licensee under Section 8(b). Any amounts refunded shall be limited to Fees paid for the current Term and shall be made on a pro-rata basis based on the number of days remaining in the current Term.

9. POST TERMINATION RIGHTS AND REQUIREMENTS

a. Upon the expiration or termination of this Agreement (i) all rights granted to Licensee under this Agreement shall terminate and Licensee shall discontinue all use of the Software and the like; and (ii) Healthy Roster may require that Licensee transmit to Healthy Roster (at no cost to Healthy Roster) or destroy all Documentation or other materials relating to the Software that Licensee has in its possession or under its control.

b. Upon request of Healthy Roster, Licensee agrees to provide written confirmation that Licensee has complied with subparagraph (a) of this Section 9.

10. TRADEMARKS

Healthy Roster™, Sway Balance™, Sway Medical™, Sway Sports™, and additional trademarks identified at healthyroster.com or swaymedical.com are trademarks of Healthy Roster with all rights reserved. No right, license, or interests to such trademarks are granted hereunder, and Licensee agrees that no such right, license, or interest shall be asserted by Licensee with respect to such trademarks.

11. HEALTHY ROSTER'S INTELLECTUAL PROPERTY RIGHTS

a. Licensee understands and acknowledges that Healthy Roster Intellectual Property has commercial value in Healthy Roster's day-to-day business and that Healthy Roster considers such information to be proprietary and/or confidential.

b. Licensee acknowledges and agrees that the Healthy Roster Intellectual Property, Software, and Documentation constitute the proprietary property of Healthy Roster and are protected under copyright, trademark, trade secret, and/or patent law both in the U.S. and in countries foreign thereto. Licensee further acknowledges and agrees that all right, title, and interest in and to the Healthy Roster Intellectual Property, Software, and Documentation, including intellectual property rights associated therewith, are and shall remain with Healthy Roster.

c. This Agreement does not convey to Licensee an interest in or to the Software, Documentation, or Healthy Roster Intellectual Property but only a limited right of use revocable in accordance with the terms of this Agreement.

12. CONFIDENTIALITY

a. Confidential Information shall include all information of any nature and in any form which at the time of disclosure is not generally known to the public, and which relates to any one or more of the aspects of the present and past business of either Party or any of its predecessors, including, but not limited to, patents and patent applications, inventions and improvements, whether patentable or not, development projects, policies, processes, formulas, techniques, know-how and other facts relating to sales, advertising, franchising, promotions, financial matters, customers, customer lists, customer purchases or requirements, licenses or trade secrets (together “Confidential Information”). For the avoidance of doubt, Healthy Roster’s Confidential Information shall include the Software, Documentation, and its algorithms, procedures, and performance information.

b. Healthy Roster and Licensee shall protect each other's Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which the receiving Party utilizes for its own Confidential Information.

c. Confidential Information shall not include information that is publicly available, demonstrably already in the receiving Party's possession prior to such receipt, obtained by either Party from third parties not under a duty of nondisclosure, independently developed by either Party without reference to the Confidential Information, or required to be disclosed by order of a court or other governmental entity, or per applicable law, including public disclosure law. If either Party is requested or required to disclose any Confidential Information, the Party receiving the request will provide the other Party with prompt notice of such request.

d. Except as expressly permitted under this Agreement, neither Party shall during the Term of this Agreement and for so long thereafter as such Confidential Information remains a Trade Secret, use, disclose or permit the disclosure of the other party’s Confidential Information for any purpose other than in the furtherance of this Agreement, without the other party’s express written consent.

e. In the event either Party knows or should reasonably know that any third party has gained unauthorized access to the other Party’s Confidential Information, the knowing Party shall immediately notify the other Party in writing, in commercially reasonable detail, of such access or disclosure.

f. Upon termination of the Agreement and at the written request of either Party, the other Party shall, either return all of the Confidential Information of the other Party in its possession, including all originals, copies, and records thereof, or furnish to the requesting Party an officer's certificate of destruction of the other Party's Confidential Information.  Notwithstanding the foregoing, neither party shall be required to destroy electronic backup copies of Confidential Information made during the ordinary course of business (“Backup Copies”) or any De-Identified Data.  Backup Copies shall continue to be protected by the confidentiality provisions herein until such copies are destroyed.

g. Notwithstanding anything herein to the contrary, confidentiality, use, disclosure, and destruction of PHI shall be governed exclusively by the BAA.

13. WARRANTY DISCLAIMER

THE SOFTWARE IS LICENSED "WHERE IS" AND "AS IS," AND HEALTHY ROSTER DISCLAIMS ANY AND ALL WARRANTIES TO THE EXTENT PERMITTED BY LAW, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, OR CORRECTNESS OF THE SOFTWARE, AND OF ANY TEST RESULTS, AS WELL AS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. HEALTHY ROSTER DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES HEALTHY ROSTER WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE. LICENSEE’S USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK.

14. INDEMNITY

a. Healthy Roster Indemnification. Subject to the limitations below, Healthy Roster agrees to defend, indemnify, and hold Licensee, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) arising out of any claims of third parties (“Claims”) that the Licensee's use of the Software infringes or misappropriates any third party’s intellectual property rights. In the event of any such Claim, Licensee agrees to promptly notify Healthy Roster of the Claim, and to provide Healthy Roster with all reasonable authority and assistance required by Healthy Roster for the defense and settlement of such claim. In such an event, Healthy Roster will have the option, at its expense, to solely control the defense or settlement of such Claim.

b. If any Claim is brought or threatened under Section 14(a) with respect to the Software, Healthy Roster may, at its sole option and expense: (a) procure for Licensee the right to continue to use the Software; (b) modify the Software to make it non-infringing; (c) replace the Software with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the Agreement and provide a pro-rata refund of any applicable prepaid Fees. Notwithstanding the foregoing, Healthy Roster will have no liability or obligation for any Claim arising out of or related to (1) the use of the Software in combination with software, technology, hardware, products or services not provided by Healthy Roster, (2) failure to use the Software in accordance with this Agreement or the Documentation, or that otherwise results from Licensee’s failure to comply with the terms of this Agreement, (3) any Claim for which Licensee has an indemnification obligation.  The foregoing represents Healthy Roster’s sole obligation, and Licensee’s sole right and remedy, for any allegations that the Software infringes any third party’s intellectual property rights.

c. Licensee Indemnification. Licensee shall defend, indemnify, and hold harmless Healthy Roster and its officers, directors, employees, and agents from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party Claims resulting from: (i) Licensee’s or any User’s use of the Software in violation of this Agreement or applicable law; (ii) any data, content, or information provided, submitted, or transmitted by Licensee or its Users through the Software, including any allegation that Licensee lacked the right or authorization to collect, use, or disclose such data; (iii) Licensee’s failure to comply with applicable privacy, data protection, or regulatory requirements, including HIPAA or FERPA, to the extent caused by Licensee; or (iv) the acts or omissions of Licensee or its Users.

15. LIMITATION OF LIABILITY.

In no event will either party be liable to the other party or any third party in contract, tort, strict liability, or otherwise, for any indirect, incidental, special, exemplary, or consequential damages arising out of the Agreement, even if such party has been advised of the possibility of such damages.

UNDER NO CIRCUMSTANCES SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT FOR ANY REASON EXCEED THE AMOUNT THAT HEALTHY ROSTER HAS BEEN PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

Notwithstanding the foregoing, the limitations of liability set forth in this Section shall not apply to: (i) a Party’s breach of its confidentiality obligations; (ii) Licensee’s indemnification obligations arising from its misuse of the Software, violation of applicable law, or failure to comply with data protection or privacy requirements; or (iii) either Party’s gross negligence or willful misconduct.

EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS OCCURRED.

16. NOTICE

Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, facsimile or email (with confirmation of transmission), or mailed by registered or certified mail, return receipt requested, postage prepaid, to the addresses indicated below, or at such other address as may hereafter be furnished in writing by either Party to the other. Such notice will be deemed to have been given as of the date it is delivered, mailed, or sent, whichever is earlier.

If to Healthy Roster/Licensor:

Healthy Roster

Attn: Contracts Administrator

PO Box 1114

Dublin, OH 43017

E-mail: legal@healthyroster.com

Either Party may change the address to which notice or payment is to be sent by written notice to the other Party pursuant to the provisions of this paragraph.

17. MISCELLANEOUS PROVISIONS

a. Software Updates. During the Term, any improvements or modifications made by Healthy Roster to the Software shall be promptly provided to Licensee and shall be automatically included in this Agreement.

b. Taxes. The Fees set forth in this Agreement do not include any applicable sales or use tax. Healthy Roster will invoice Licensee for, and Licensee will pay to Healthy Roster, an amount equal to any sales or use tax, imposed by any local, state or federal taxing authority that Healthy Roster is legally required to collect as a result of this Agreement, with the exception of those taxes assessed on the income, net worth, gross revenues or receipts or real or personal property of Healthy Roster.

c. Successors. This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.

d. Waiver. No waiver by either Party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.

e. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid provision shall be deemed to be severed from the Agreement.

f. Assignment. Licensee shall not assign or otherwise transfer its rights and obligations under this Agreement without the prior written consent of Healthy Roster. Any violation of this provision will result, at Healthy Roster’s sole option, in the immediate termination of this Agreement in addition to all other remedies available at law or in equity. Notwithstanding the foregoing, either Party may, without the need for consent from the other Party, transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of such Party upon the condition that any such assignee has agreed to be bound by the terms and conditions of this Agreement.

g. Entire Agreement; Order of Precedence. This Agreement, including all Exhibits, the Privacy Policy, the BAA, and our online Terms of Use, constitutes the entire agreement between the Parties and supersedes all prior agreements, negotiations, or representations. In the event of a conflict between these documents, the following order of precedence shall apply:

1. The BAA (solely with respect to PHI)
2. This Agreement (MSA)
3. The Privacy Policy (solely with respect to the collection and use of Personal Information)
4. The online Terms of Use (ToU).

h. Export Control. The Software, including any Documentation, data, or information and services pertaining thereto, may be subject to export controls under the laws of the United States of America. Unless written export authorization has been obtained from Healthy Roster, the Software and Documentation may not be exported outside of the United States for any reason.

i. Headings. The various headings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any paragraph or provision hereof.

j. Mutual Drafting. This Agreement shall be deemed to have been drafted by all parties, since all parties have been assisted by their counsel in reviewing and agreeing thereto (or have chosen not to be so assisted), and no ambiguity shall be resolved against any Party because of its participation in the drafting of this Agreement.

k. Modifications. No amendment to this Agreement will be effective unless it is recorded in writing and signed by a duly authorized representative of each Party.

l. No Third-Party Beneficiary. This Agreement is not intended to be for the benefit of, and shall not be enforceable by, any person who is not a Party.

m. Counterparts. This Agreement may be executed in any number of counterparts and electronically mailed, each of which shall be deemed to be an original, but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies, each signed by less than all, but together signed by all, the Parties hereto.

n. Choice of Law and Venue. This Agreement and any action related thereto will be governed by the laws of the State of Ohio without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings, or litigation arising in connection with the Software will be brought solely in the federal or state courts located in Franklin County, Ohio, and the parties consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.

o. Government Entities. If Licensee is a federal, state, or local government entity in the United States using the Software in its official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to Licensee. For such U.S. federal government entities, these Terms and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Delaware (excluding choice of law).

p. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or de-lay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

q. Survival. The provisions of this Agreement that, by their nature, should survive termination or expiration shall survive, including, without limitation, provisions relating to intellectual property ownership, confidentiality, data protection, indemnification, limitation of liability, warranty disclaimers, accrued payment obligations, governing law and venue, and post-termination obligations.

r. Affiliates. Healthy Roster may perform certain obligations under this Agreement through its affiliate, Sway Medical, Inc. (“Sway”). Healthy Roster shall remain responsible for the acts and omissions of Sway in connection with this Agreement as if such acts or omissions were its own.

 Last Updated: 3/26/2026