STANDARD TERMS AND CONDITIONS

 

Thank you for visiting www.santaschristmassurprise.com.au (“Website”). The following terms and conditions (“Terms”) form a binding contractual agreement between Fruitbowl Events Pty Ltd (“Fruitbowl”) and you, the user of the Website and/or customer of Fruitbowl (“you”, “your”). These Terms govern your use of the Website and any goods and services ordered via the Website or Fruitbowl (“Orders”). By visiting the Website and/or placing an Order, you agree to be legally bound by these Terms, as amended from time to time. Fruitbowl reserves the right to modify any part of these Terms at any time and it is your responsibility to check this page periodically for changes.  



ORDERS

Through the Website, you may obtain personalized videos (each, a “Video”) from performers posing as Santa, Mrs Claus, elves or other people from the North Pole (each “Talent”). You may submit a request to Fruitbowl for a Video that is personalized for the recipient of the Video (“Recipient(s)”). For the purpose of these Terms, a “Video” includes a live video call (and subsequent recording of the video call) between the Talent and the Recipient(s). 

 

You can place an Order on the Website by choosing the relevant package, filling out your details, and paying the fee, as advertised at the time of the Order, for the relevant goods and services. Your receipt of an electronic, or other form of, order confirmation does not signify Fruitbowl’s acceptance of your order, nor does it constitute confirmation of Fruitbowl’s offer to sell. Fruitbowl reserves the right at any time after receipt of your order to accept, decline, or limit your order for any reason, whether or not you have been charged for the order. If Fruitbowl declines or limits your order, Fruitbowl will refund your order to the extent that Fruitbowl has declined or limited your order. 

 

Once your Order has been submitted to Fruitbowl, any request for subsequent changes must be sent in writing to info@santaschristmassurprise.com.au. Variations cannot be guaranteed and shall be at Fruitbowl’s sole discretion. Any variation or cancellation agreed to by Fruitbowl may incur additional costs, which shall be notified to you. You acknowledge that any payment for an Order made by you is non-refundable, non-returnable, non-transferable, and not redeemable for cash.

 

By placing an Order, you acknowledge that:

(a)        you are over 18 years of age;

(b)        all details you provide to Fruitbowl are true and accurate;

(c)        you are an authorised user of the account and/or connected credit card to your order;

(d)        there are sufficient funds on  account and/or credit card to cover the cost of the goods; and

(c)        foreign exchange rates may fluctuate and that all charges are subject to such changes. 

 

A confirmation email will be sent to you in acknowledgement of receipt of your Order. This document supersedes all prior correspondence in relation to your order (verbal, written, graphic or otherwise). If your package includes a live video call, then you will also receive a link to join the call at the relevant nominated time and date in accordance with your Order. Videos which are recorded from a live video call between the Talent and Recipient(s) will be sent to you within three (3) days after the live video call. 

 

Fruitbowl will provide you the services in accordance with your Order. Video(s) will be made available by Fruitbowl’s to download for a period of ten (10) days from the date it is sent to you (“Availability Period”). For the avoidance of doubt, you will not be provided Video in RAW format under any circumstance.

 

Fruitbowl may, at its sole discretion, dispose of or retain any part or whole of the Video at any time after the Availability Period has expired.  If the Video is retained by Fruitbowl after the expiry of the Availability Period, Fruitbowl may charge an additional fee, at its sole discretion, if you request for the Video to be re-supplied to you or otherwise edited.

PRICES

All transactions are processed in Australian Dollars (AUD) and exclude a Goods and Services Tax (“GST”) of 10% unless otherwise specified. All prices displayed on the Website are subject to change without notice, including offering promotional, discount or higher prices. The valid price at any time is that which is published on the Website at the time of purchase. Prices on the Website may differ from those published elsewhere and by third parties. Prices for a package may differ depending on which date your Order is made for e.g. Fruitbowl may charge higher prices for packages closer to Christmas. 

 

In the event that a package is listed at an incorrect price or with incorrect information due to typographical error or otherwise, Fruitbowl may refuse to fulfil or cancel any Orders placed for such products listed at the incorrect price, whether or not the Order has been confirmed or you have been charged in part or full for the order. 

 

PAYMENT

Payment must be made in full at time of online Order. Fruitbowl utilises the services of third parties, which may include Stripe and PayPal to process payments on the Website (“Payment Partner”).  You are responsible for making your own enquiries into and abiding by the terms and conditions of use of the relevant Payment Partner. All enquires or issues relating to payment processing must be directed to the relevant Payment Partner. In no event shall Fruitbowl be responsible or liable for any payment processing issue or error. Fruitbowl will not be responsible for any damages, consequential losses (whether direct or indirect) suffered by a customer whose credit card is fraudulently used or is used in an unauthorised manner. You are responsible for any transaction or processing fee (including any currency conversion fee) connected to your Order. 

 

You acknowledge, confirm, and agree that:

  1. all details you provide to Fruitbowl and the Payment Partner are true and accurate, that you are an authorised user of the credit or debit card used make payments to Fruitbowl and that there are sufficient funds to cover the cost of the Order;

  2. foreign exchange rates may fluctuate and that all charges are subject to such changes; and

  3. Fruitbowl may, at its sole and absolute discretion, increase, decrease, modify, alter, introduce or remove any fee or tariff charged by Fruitbowl, either permanently or temporarily.

 

CHANGES AND CANCELLATIONS

Should you seek to change the scheduled time for a live Video call, for any reason, Fruitbowl, will use reasonable endeavours, but is not obligated, to accommodate such request. 

Should you seek to terminate and Order prior to fulfilment by Fruitbowl, for any reason, you acknowledge that any payment made by you is non-refundable, non-returnable, and non-transferable.

Should Fruitbowl be unavailable to perform the services, Fruitbowl shall refund any part of the payment received by Fruitbowl from you for the portion of the services it is unable to fulfil.

RIGHTS GRANTED

You may submit a request to Fruitbowl for a Video that is personalized for the Recipient(s). 

You acknowledge and agree that the Fruitbowl has sole discretion to determine how to fulfill your request and the content of the Video created, and may not follow your request exactly. Fruitbowl reserves the right to reject any request in its sole discretion. 

 

Videos are licensed, not sold. You are buying the right (or license) to use it, not the actual Video itself.

You hereby grant Fruitbowl, and its successors and assigns the right to Video, record, photograph and otherwise capture the name, likeness, image, voice, appearance, and performance of the Recipient(s); 

In consideration of the full payment of the Order by you, Fruitbowl grants you a perpetual, worldwide licence to use the Video for personal, non-commercial purposes. 

 

For the avoidance of doubt: 

  1. use of the Video for any commercial or non-personal purpose is strictly prohibited; 

  2. you are not permitted to (do yourself or authorize any other person to) edit, or alter in any way the Video except to resize to a lower resolution e.g. for use on your personal social media sites; and

  3. you may not remove any watermarks embodied on the Video;

  4. Fruitbowl asserts all moral rights attached to the Video on behalf of the Talent.

 

You may link to the Website, provided you do so in a way that is fair and legal and does not damage Fruitbowl’s reputation or takes advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement where none exists. 

 

You agree that you will not use any Fruitbowl service or Video in such a way which:

  1. causes you or Fruitbowl or any Talent to breach any law, regulation, rule, code or other legal obligation;

  2. breaches these Terms or the Privacy Policy;

  3. infringes the intellectual property or other rights of any third party, or otherwise links to infringing or unauthorised content;

  4. brings or could bring Fruitbowl or any Talent into disrepute;

  5. is or could reasonably be considered to be deceptive, misleading, false, fraudulent, obscene, defamatory, disparaging, libellous, seditious, offensive, scandalous, sexually explicit, blasphemous threatening, harassing, vulgar, indecent, profane, hateful, degrading, discriminatory, intimidating, graphically violent, liable to incite racial hatred, racially or ethnically offensive, encourages criminal conduct, or is otherwise inappropriate;

  6. creates or attempts to create any commercial affiliation where one does not exist;

  7. unlawfully impersonates any person (including by way of celebrity look-a-likes or sound-a-likes), or states or misrepresents any affiliation with any person where such affiliation does not exist;

  8. depicts, encourages, promotes or induces conduct that could violate any law or give rise to criminal or civil liability;

  9. contains any personally identifying or other personal information about you or any other person except as expressly requested by us for the provision of Order to you;

  10. is in breach of confidence or in breach of privacy, or contains any confidential information, material, or non-public information about any individual, person, or company without express approval of the individual, person, or company;

  11. contains or omits any information or instruction that might be injurious to any person’s wellbeing; or

  12. is otherwise objectionable to Fruitbowl in its sole discretion.

 

INTELLECTUAL PROPERTY

Fruitbowl is the owner of the intellectual property created by Fruitbowl in the course of fulfilling any Order, including but not limited to the Video, and digital or electronic material and any other work relating to the Video created or developed by Fruitbowl. 

Fruitbowl retains all rights and ownership in the Video and all underlying rights. No interest in the Video and/or digital equivalent is assigned or licensed to you by this Agreement, except to the extent expressly described in these Terms. 

 

THIRD PARTY SERVICES

Fruitbowl uses a number of third party platforms and sites through API’s, plugins and links to enhance your user experience (“Third Party Service”). Please note that these Terms and Conditions do not cover the practices of Third Party Services which may be integrated or otherwise linked to or used by Fruitbowl. Please refer directly to the terms and statements of any Third Party Service to obtain information regarding their data collection, use, and disclosure policies. 

 

Fruitbowl will allow the Recipient to link with the Talent via a third party video conferencing platform (such as ‘Zoom’). Please note calls take place on or via such Third Party Service, which is not owned or controlled by Fruitbowl.

 

Fruitbowl disclaims all liability in connection with the services of Third Party Services. If you have any concerns about any Third Party Service, please reach out to them directly via the links supplied above.

 

REFUNDS AND EXCHANGES

Please choose carefully before placing an order. Fruitbowl cannot offer refunds for change of mind or wrong selection. 

 

In the unlikely event that you receive a Video that you consider to be faulty or damaged you must notify Fruitbowl in writing within twenty-four hours of receipt together with any evidence reasonably requested by Fruitbowl. Any failure to notify Fruitbowl within the timeframe specified shall be deemed acceptance by you that the Video is free from any damage whatsoever. To the extent allowed under law, no refunds will be provided for any defects that can be reasonably rectified. 

 

If any legislation operates to prohibit or restrict the exclusion, restriction or modification of any implied warranties, conditions or obligations, then to the full extent permitted by law, Fruitbowl limits its liability in respect of any such claim to, at its option:

 

  1. the replacement of the goods or services or the supply of equivalent goods or services;  

  2. the repair of the goods;

  3. the payment of the cost of repairing the goods or services, or replacing the goods or services.


WARRANTY, LIABILITY AND INDEMNITY

You warrant and represent to Fruitbowl that you: 

  1. are the parent or legal guardian of the Recipient(s), or have procured that the parent or legal guardian of the Recipient(s) has read and agreed to these terms, and has consented to their Recipient(s) participation in the Video;

  2. have the capacity and authority to enter into this Agreement; 

  3. will only use the Video in accordance with the licence granted under these Terms.  

 

You acknowledge, warrant, and agree that:

  1. the outcome of the Video is subject to and dependent on a number of factors throughout the recording of the Video including but not limited to the Recipient’s mood, personality, energy and confidence level; and

  2. Fruitbowl makes no guarantee that the Video will meet your expectations.

 

You agree to fully indemnify and hold Fruitbowl harmless from any loss, damage, proceeding and cost (including all reasonable legal costs), whether in contract, tort, under statute or otherwise, directly or indirectly as a result of or in connection with the Order, Fruitbowl’s services, your breach of any provision or warranty of these Terms, your or the Recipient’s violation of any applicable law or the rights of any third party, or your use or disclosure of another person’s personal information including any financial or billing information which you are not authorised to use or disclose. 

 

The Website and Third Party Services will not operate on a continuous basis and may be unavailable from time to time (including for maintenance purposes), without prior notice or liability to you. 

 

To the maximum extent permitted by law, Fruitbowl will not be liable to you, any Recipient, or to any person under any cause of action related to an Order, whether in contract, warranty, tort (including negligence), strict liability, products liability, professional liability, indemnity, contribution or any other cause of action in an amount in excess of the aggregate payment actually received by Fruitbowl from you under the relevant Order as at the time that the liability arose.

 

In the event of non performance by Fruitbowl for any reason, including but not limited to an equipment failure, weather disturbance, industrial dispute, civil disturbance or any other event which prevents Fruitbowl from completing the Services in whole or in part, any claim you have is limited to (at Fruitbowl’s sole discretion): (a) a refund of the total Order received by Fruitbowl; or (b) rescheduling of fulfilment of the Order. 

THE SERVICES OFFERED BY FRUITBOWL AND ALL INFORMATION AND MATERIALS PROVIDED THROUGH THE WEBSITE AND VIDEOS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FRUITBOWL EVENTS PTY LTD, AND EACH OF ITS JOINT VENTURERS, LICENSORS, SUPPLIERS, VENDORS, DISTRIBUTORS, ADVERTISERS AND OTHER CONTRACTING PARTIES, SPECIFICALLY DISCLAIM ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, NO WARRANTIES SHALL BE IMPLIED BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

FOR THE AVOIDANCE OF DOUBT, THE SERVICES ARE PROVIDED FOR THE SOLE PURPOSE OF PROVIDING ONLINE, VIRTUAL ENTERTAINMENT EXPERIENCES. ANY PROMISE OR OFFER MADE BY ANY TALENT DURING ANY VIDEO IS NOT BINDING ON THE TALENT NOR ON FRUITBOWL. 

 

Please be aware that when you access or use the Website, Video, or any Third Party Service on your mobile or other personal device that your carrier's normal rates and fees, such as text messaging, internet, and data charges, will still apply.

 

Fruitbowl is not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of the Website, Fruitbowl services, Video, Third Party Services or third-party linked website.

 

MISCELLANEOUS 

These Terms constitute the entire understanding between the parties, and may not be modified, amended, or otherwise altered unless agreed in writing between the parties. If any provision of these Terms are held to be invalid under the law, the validity of the whole shall not be affected. The remaining provisions will remain in full force and effect. Each party must do all acts and execute all documents as necessary to give effect to these Terms. These Terms must be read and construed according to the laws of the state of Victoria. The parties submit to the jurisdiction of that state.