1. Definitions
(a) “User” means any person who accesses, browses, or uses the Platform, including fitness professionals (“Coaches”) and their clients (“Clients”).
(b) “Nativus” means Nativus Fitness Technology Pty Ltd (ACN 676 246 138), its successors and assignees.
(c) “Platform” refers to Nativus’ online business management software designed for the fitness
industry.
(d) “Coach” refers to a fitness professional who uses the Platform to manage their business and engage with Clients.
(e) “Client” refers to an individual who engages with a Coach through the Platform. “Payment Provider” refers to the third-party service that processes payments between Coaches and Clients.
2. About the Platform
(a) The Platform provides business management tools for fitness professionals, including scheduling, communication, and payment facilitation. The Platform acts solely as a passive conduit for transactions and interactions between Coaches and Clients. We do not provide fitness services, endorse any User, or participate in contractual agreements between Coaches and Clients.
(i) All queries relating to registrations, fitness programs, assessments, bookings, forms
or payments are handled by the Coach directly.
(b) The Platform is operated by Nativus. Access to and use of the Platform, is provided by Nativus. Please read these terms and conditions (Terms) carefully. By using, browsing and/or reading the Platform, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Platform, immediately.
(c) Nativus reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Nativus updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
3. Acceptance of the Terms
(a) You accept the Terms by remaining on the Platform. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Nativus in the user interface.
4. Registration to use the Platform
In order to access the Platform, you must first register for an account through the Platform (Account). As part of the registration process, or as part of your continued use of the Platform, you may be required to provide personal information about yourself (such as identification or contact details), including:
(i) Email address
(ii) Mailing address
(iii) Telephone number
(iv) Password
(c) You warrant that any information you give to Nativus in the course of completing the registration process will always be accurate, correct and up to date.
(d) Once you have completed the registration process, you will be a registered member of the Platform (Member) and agree to be bound by the Terms.
(e) You may not use the Platform and may not accept the Terms if:
(i) you are not of legal age to form a binding contract with Nativus; or
(ii) you are a person barred from receiving the Platform under the laws of Australia or other countries including the country in which you are resident or from which you use the Platform.
(f) Coaches are responsible for ensuring their compliance with all applicable laws, including qualifications, insurance, and tax obligations.
(g) Clients are responsible for verifying the credentials and suitability of any Coach before engaging their services.
5. Your obligations as a Member
(a) As a Member, you agree to comply with the following:
(i) you will use the Platform only for purposes that are permitted by:
(A) the Terms; and
(B) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(ii) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the use of the Platform;
(iii) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Nativus of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(iv) access and use of the Platform is limited, non-transferable and allows for the sole use of the Platform by you for the purposes of Nativus providing the Platform;
(v) you will not use the Platform in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Nativus;
(vi) you will not use the Platform or Platform for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Platform;
(vii) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Platform without notice and may result in termination of the use of the Platform. Appropriate legal action will be taken by Nativus for any illegal or unauthorised use of the Platform; and
(vii) you acknowledge and agree that any automated use of the Platform is prohibited.
6. Role of the Platform
(a) The Platform is a technology service provider that enables Coaches to manage their business. It does not:
(i) Offer fitness services.
(ii) Supervise, control, or guarantee the services provided by Coaches.
(iii) Establish an employment or agency relationship with any User.
(iv) Set pricing, policies, or terms for any Coach or Client.
(v) Any disputes regarding services, refunds, or agreements between Coaches and Clients must be resolved between them directly. The Platform is not responsible for mediating or resolving disputes.
7. Payment
(a) The Platform facilitates payments between Coaches and Clients through a third-party Payment Provider. The Platform does not collect or hold funds on behalf of Users.
(b) All payments made in the course of your use of the services are made using E-way. In using the Platform, the services or when making any payment in relation to your use of the services, you warrant that you have read, understood and agree to be bound by the E-way terms and conditions which are available on their website.
(c) You agree and acknowledge that the Coach can vary the Subscription Fee at any time.
(d) Nativus does not bill you for use of the Nativus Coach Me app
(i) Your Coach will bill you directly and their details will appear on your statement; and
(ii) Payments made by you through the Platform are paid directly to your Coach.
(e) Coaches are responsible for setting their pricing and refund policies. Any refund requests must be directed to the Coach, not the Platform. Please check with your Coach for additional terms and conditions that may apply.
(f) Any benefits set out in this Terms and Conditions may apply in addition to consumer’s rights under the Australian Consumer Law.
(g) Clients acknowledge that the Platform is not responsible for any issues related to payment processing, including chargebacks, failed payments, or refunds.
8. Copyright and Intellectual Property
(a) The Platform, and all of the related products of Nativus are subject to copyright. The material on the Platform is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the compilation of the Platform (including but not limited to text, graphics, logos, button icons, video images, audio clips, Platform code, scripts, design elements and interactive features) or the Platform are owned or controlled for these purposes, and are reserved by Nativus or
its contributors.
(b) All trademarks, service marks and trade names are owned, registered and/or licensed by Nativus, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:
(i) use the Platform pursuant to the Terms;
(ii) copy and store the Platform and the material contained in the Platform in your device’s cache memory; and
(iii) pages from the Platform for your own personal and non-commercial use.
(c) Nativus does not grant you any other rights whatsoever in relation to the Platform. All other rights are expressly reserved by Nativus.
(d) Nativus retains all rights, title and interest in and to the Platform. Nothing you do on or in relation to the Platform will transfer any:
(i) business name, trading name, domain name, trade mark, industrial design, patent,
registered design or copyright, or
(ii) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(iii) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
(e) You may not, without the prior written permission of Nativus and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Platform or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Platform, which are freely available for re-use or are in the public domain.
9. Privacy
Nativus takes your privacy seriously and any information provided through your use of the Platform are subject to Nativus’ Privacy Policy, which is available at nativuscoach.com
Nativus Fitness Technology Pty Ltd reserves the right to modify, update, or change its Privacy Policy from time to time. Users will be notified of any material changes to the Privacy Policy and continued use of the Platform after such changes constitutes acceptance of the updated Privacy Policy.
The types of personal information we collect may include your name, contact details, device information, usage data, and location data. We collect this information when you register, or interact with our Platform. Your personal information will be stored securely for 30 days after account closure and you may request access to, correction, or deletion of your personal information by contacting our Privacy Officer. We will respond to such requests within 20 business days.
Pre-exercise screening questions are a set of questions designed to assess an individual’s readiness to engage in physical activity. Their primary purpose is to identify potential health risks that could arise during exercise. Pre-exercise screening results will be kept as confidential files and shared only among the exercise professionals involved with the client’s exercise program and general well-being with client’s consent.
10. General Disclaimer
(a) Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
(b) Subject to this clause, and to the extent permitted by law:
(i) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(ii) Nativus will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Platform or these Terms (including as a result of not being able to use the Platform or the late supply of the Platform), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
(c) Use of the Platform is at your own risk. Everything on the Platform is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Nativus make any express or implied representation or warranty about the Platform (including the products or Platform of Nativus) referred to on the Platform. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(i) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(ii) the accuracy, suitability or currency of any information on the Platform, or any of its related products (including third party material and advertisements on the Platform);
(iii) costs incurred as a result of you using the Platform, or any of the products of Nativus; and
(iv) the Platform or operation in respect to links which are provided for your convenience.
11. Limitation of liability
(a) Nativus total liability arising out of or in connection with the Platform or these Terms,
however arising, including under contract, tort (including negligence), in equity, under
statute or otherwise, will not exceed the resupply of the Platform to you.
(b) You expressly understand and agree that Nativus, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation
and any other intangible loss.
(c) You expressly acknowledge and agree that Nativus shall not be liable for any loss or damage arising from your failure to comply with these Terms or to take all necessary precautions to ensure that any material you may download or otherwise obtain through your use of the Platform is free of viruses or other harmful components.
12. Competitors
If you are in the business of providing similar Platforms for the purpose of providing them to users for a commercial gain, whether business users or domestic users, then you are a competitor of Nativus. Competitors are not permitted to use or access any information or content on our Platform. If you breach this provision, Nativus will hold you fully responsible for any loss that we may sustain and hold you accountable for all profits that you might make from such a breach.
13. Termination of Contract
(a) The Terms will continue to apply until terminated by either you or by the Coach as set out below.
(b) If you want to terminate the Terms, you may do so by:
(i) closing your accounts for all of the services which you use, where the Coach has made this option available to you.
Your notice should be sent, in writing, to the Coach with the Coach’s preferred communication method.
(c) The Coach may at any time, terminate the Terms with you if:
(i) you have breached any provision of the Terms or intend to breach any provision;
(ii) The Coach is required to do so by law;
(iii) the provision of the Platform to you by the Coach is, in the opinion of the Coach, no longer commercially viable.
(iv) the user fails to pay any fees or charges associated with the Subscriptions when due;
(d) Subject to local applicable laws, the Coach reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Platform without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts the Coach’s name or reputation or violates the rights of those of another party.
14. Indemnity
You agree to indemnify Nativus, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your content;
(b) any direct or indirect consequences of you accessing, using or transacting on the Platform or attempts to do so; and/or
(c) any breach of the Terms.
15. Dispute Resolution
15.1. Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
15.2. Notice:
A party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
15.3. Resolution:
On receipt of that notice (Notice) by that other party, the parties to the Terms (Parties) must:
(a) Within 28 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 28 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Australian Mediation Association;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in Sydney, NSW, Australia.
15.4. Confidential
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
15.5. Termination of Mediation:
If 2 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
15.6. The Parties agree that any legal action arising out of or relating to these Terms must be filed within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
16. Venue and Jurisdiction
The Platform offered by Nativus is intended to be viewed by residents of Australia and New Zealand. In the event of any dispute arising out of or in relation to the Platform, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
17. Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
18. Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.