Terms and Conditions
The small print.
These General Terms and Conditions set out the terms and conditions under which Dreamstar Digital, trading as Midnight, will provide services to Customers. These General Terms and Conditions set out the Customer’s legal rights and remedies and should be read carefully prior to ordering any Services.
The Customer’s attention is specifically drawn to the provisions of clauses 9 and 10 of these General Terms and Conditions which set out Midnight’s maximum liability to the Customer and the Customer's potential liability to Midnight.
Where the Customer is a Consumer, as defined below, the Customer’s attention is further drawn to clause 13.2 below. A Consumer is entitled to a 14 day cooling off period under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Given the online nature of the Services, there may be circumstances where Midnight is unable to commence provision of the Services until the cooling off period has expired or unless the Customer has expressly waived their right to a cooling off period. This applies in respect of domain names and SSL certificates in particular.
“Acceptable Use Policy” means Midnight’s Acceptable Use Policy, as updated from time to time, which can be found on the Website.
“Associated Company” means a subsidiary or holding company of a company or any subsidiary company of such subsidiary or holding company. The terms “subsidiary” and “holding company” have the meanings given to them by section 1159 of the Companies Act 2006.
“Consumer” means an individual who is making use of the Services not as part of a business, trade or profession or for the purpose of financial or commercial gain including the placing of advertisements on any domain. An individual shall not be construed as a Consumer where the individual is the registered holder of 10 or more domains, is carrying on business using any services ordered from Midnight or who has registered any domain(s) during the applicable landrush or sunrise periods.
“Fees” shall mean the charges payable by the Customer as specified on the Order Confirmation or as advised to the Customer from time to time.
“Initial Term” means a minimum term as specified for each product. If no minimum term is specified for a product then the default is a minimum period of 1 months.
“Insolvency Event” shall mean, in respect of a corporate entity, becoming the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986 (‘the IA’); becoming unable to pay its debts within the meaning of section 123 of the IA; or has a receiving, manager administrator or administrative receiver over any parts of its assets, undertaking or income, has passed a winding up resolution, ceases or threatens to trade or has a petition presented to any court for its winding up or administration order. In the case of the an individual, Insolvency Event shall mean where the entering into or any debt management plan or Individual Voluntary Agreement, bankruptcy, the inability to pay debts as defined in sections 267 and 268 of the IA or any similar event.
“Order Confirmation” means the email or other confirmation sent to the Customer in response to the Customer’s request for Services.
“Product Terms” means the terms and conditions specific to the Services ordered by the Customer as which are located on the Website.
“Services” shall mean the services provided by Midnight under the Agreement as stated on the Order Confirmation together with any ancillary services.
“Software” means any software provided by Midnight to the Customer under or in relation to this Agreement.
“Website” means www.getMidnight.com.
2.1 Headings used in the Agreement are inserted for convenience only and are not intended to be part of, nor to affect the meaning or interpretation of any of the terms of, the Agreement.
2.2 In the Agreement the masculine includes the feminine and the neuter and the singular includes the plural and vice versa as the context shall admit or require.
2.3 The expression “person” means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.
2.4 In the event of a conflict between any term of these General Terms and Conditions, the Product Terms and/or the Order Confirmation, the conflict will be resolved according to the following order of priority i) the Order Confirmation, ii) the Product Terms and iii) these General Terms and Conditions.
2.5 The words “include”, “includes”, “included” and “including” will be construed without limitation unless inconsistent with the context.
2.6 The Agreement (as varied in accordance with its terms) forms the entire understanding between the parties and supersedes all previous agreements, understandings and negotiation between the parties. All other understandings, agreements, warranties, conditions, terms representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. The Customer may not rely upon any representation made or given by any Midnight employee prior to the Agreement being entered into unless confirmed in the Agreement.
2.7 The parties do not intend that any of the terms of the Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999.
2.8 References in these General Terms and Conditions to clauses mean clauses of these General Terms and Conditions unless the contrary is stated. References in these General Terms and Conditions to statutes or statutory instruments are deemed to include those provisions as subsequently amended or substituted.
3. Service Provision
3.1 Midnight shall provide the Services order by the Customer. These General Terms and Conditions and the Product Terms are not an offer to provide Services but a statement of the terms under which the Services would be provided. The Agreement is incorporated on Midnight’s issuing of the Order Confirmation.
3.2 Midnight will use its reasonable endeavours to provide the Services in accordance with any agreed or expected timescale however; time will not be of the essence in providing the Services. Midnight will not be liable to the Customer where, using those endeavours, it fails to meet any timescale.
3.3 Midnight shall be entitled to suspend the provision of the Services in the event that the Customer or the Customer’s agent, subcontractor or employee breaches the terms of the Agreement or where Midnight reasonably believes this has or will occur. Midnight shall have no liability to the Customer as a result of such suspension.
3.4 Midnight shall not be obliged to provide any services not specified in the Order Confirmation.
3.5 Midnight reserves the right at any time and from time to time to improve, correct, or otherwise modify any or all of the Services. Midnight will endeavour to give the Customer reasonable notice of any such modification where possible.
3.6 Midnight reserves the right to refuse a Customer’s order for any reason at its discretion.
3.7 Midnight shall be entitled to verify the Customer’s email and postal addresses from time to time. In the event that Midnight is unable to verify the Customer’s email and/or postal address Midnight may suspend the provision of the Services without liability.
3.8 Without prejudice to its other rights and remedies, Midnight may at its sole discretion suspend, in whole or in part, the provision of the Services (temporarily or permanently) and without liability to the Customer in any of the following circumstances:
3.8.1 scheduled or unscheduled maintenance or upgrade of Midnight’s systems;
3.8.2 the issuing by any competent authority of an order which binding on Midnight and which affects the provision of the Services to the Customer;
3.8.3 failure by the Customer to pay any sum owing to Midnight when such payment falls due;
3.8.4 breach by the Customer of the Acceptable Use Policy;
3.8.5 breach by the Customer of the Data Protection Policy;
3.8.6 failure or deficiencies in the Customer’s System; or
3.8.7 the occurrence of any event following which Midnight reasonably considers it to be appropriate to suspend the provision of the Services and/or terminate the Agreement.
3.9 Where Midnight suspends the provision of the Services under clause 3.8.3 above, Midnight shall not be obligated to lift such suspension outside of normal business hours and until the Customer has paid all outstanding sums owing to Midnight in cleared funds and, if required by Midnight, accepted such revised payment terms and method as Midnight may reasonably require.
3.10 Where Midnight operates its own backup procedures in respect of any particular products then such backups are carried out on a ‘reasonable efforts basis’ and are intended as a convenience rather than a replacement for a Customers own backup arrangements. Primarily responsibility for backups rests with Customers and Dreamstar Digital accepts no liability in the event that a backup fails, is out of date in any way or is not a complete backup of the Customer’s data. Customers must arrange for their own backup facilities at the frequency they require.
4. Midnight Warranties
4.1 The Customer acknowledges that given the nature of services provided over the internet, Midnight cannot guarantee that the Services will be uninterrupted or error free.
4.2 To the fullest extent permitted by law and save as provided elsewhere in the Agreement, the Services are provided on an “as is” and “as available” basis and no warranty or representation (express or implied) of any kind is given in connection with the Agreement or the Services including as to satisfactory quality or fitness for a particular purpose.
4.3 Midnight gives no warranty or representation that:
4.3.1 the Services will meet the Customer’s requirements;
4.3.2 the Services will be provided on an uninterrupted, timely, secure or error-free basis; or
4.3.3 any results obtained from the Services will be accurate, complete or current.
4.4 Midnight warrants that it will provide the Services with reasonable care and skill.
4.5 Midnight shall not be liable for breach of any warranty in the event that the cause of such breach is related to any failure or non-availability of any third party service providers.
4.6 Midnight shall have no liability for any breach of the warranty at clause 4.4 unless the Customer notifies Midnight of such breach within fourteen days of becoming aware of such a breach. Provided the Customer has complied with the notification time limit set out in this clause 4.6, Midnight may, at its sole discretion, take such steps to remedy such breach or provide a refund to the Customer of such Fees as may be appropriate. Provided Midnight remedies such breach it shall have no further liability to the Customer. If Midnight fails to remedy such breach then Midnight’s maximum liability for breach of warranty shall be as set out in clause 9.4 below.
5. Customer’s Warranties and Obligations
5.1 Where the Customer is a corporate entity, the Customer, or the Customer’s representative, warrants that the Customer is properly constituted and has the capacity to enter into the Agreement. The Customer’s representative warrants that it is authorised to bind the Customer. Where the Customer is an individual the Customer warrants that he/she has the capacity to enter into the Agreement.
5.2 The Customer warrants that any materials it provides will be accurate in all respects and will not include material which is illegal, the accessing, transmitting, holding or supplying of which could be a criminal offence or which is otherwise unlawful or in breach of any applicable law or code of practice applying to such materials.
5.3 The Customer warrants that all information provided to Midnight is complete, accurate and up to date and shall inform Midnight of any changes to this information without delay.
5.4 The Customer warrants that it will:
5.4.1 immediately inform Midnight on becoming aware of any unauthorised use of the Services and/or the Customer’s system;
5.4.2 obtain all necessary licenses, waivers and consents required for the use of the Services and the Customer’s material;
5.4.3 not use the Services or allow them to be used for unlawful purpose or for the publication, linking to, issue or display of any unlawful or objectionable material (including any pirated content, material which is obscene, threatening, malicious, harmful, abusive, defamatory or which breaches any third party’s intellectual property rights or which encourages criminal acts or contains any virus, worm, malware, trojan horse or harmful code) whether under English law, the laws of the Customer’s country or any other jurisdiction where the results of such purpose or the material in question can be accessed;
5.4.4 comply with all applicable legal requirements in using the Services including, but not limited to, the Data Protection Act 1998, The General Data Protection Regulation, The Privacy and Electronic Communications Regulations 2003 and the Computer Misuse Act 1990;
5.4.5 not use the Services or allow the Services to be used for the publication, web forwarding, linking to issue of or display or any material which in the absolute discretion of Midnight may harm Midnight or any Associated Company or their clients;
5.4.6 not use any third party services for the publication, linking to, issue or display of any material which refers to any website hosted by Midnight or any of Midnight’s Associated Companies or any other products or services offered by Midnight or any of Midnight’s Associated Companies without such company’s prior written consent;
5.4.7 comply, and ensure that anyone using the Services complies, with the Acceptable Use Policy and the Data Protection Policy;
5.4.8 be entirely responsible for and make whatever back-ups of the Customer’s data that the Customer considers necessary or desirable;
5.4.9 comply expeditiously with any Midnight security policy notified to the Customer from time to time;
5.4.10 ensure that all passwords and user names provided by Midnight are kept confidential and not disclosed to third parties;
5.4.11 inform Midnight without delay if the Customer has reason to believe that the Customer’s user name or password has been compromised;
5.4.12 be entirely liable for all activities conducted and charges incurred under the Customer’s user name and password whether authorised by it or not and the Customer acknowledges that Midnight shall not be liable for any loss of confidentiality or any damage resulting from the Customer’s inability to comply with the Agreement;
5.4.13 ensure that all material or data hosted by Midnight on any website operated by the Customer or communicated through such site is checked for viruses and other harmful code and has appropriate security patches applied; and
5.4.14 comply with any applicable ICANN requirements applicable to the Services, for example, ICANN’s Registrants’ Benefits and Responsibilities Specification and Registrant Educational Materials.
5.5 The Customer warrants that it has appropriate knowledge of how the Internet functions, the nature and technical nature of the Services and what types of use and material are and are not acceptable.
5.6 The Customer acknowledges that Midnight has no obligation to:
5.6.1 train the Customer or the Customer’s employee, agent or subcontractor on use of the Services;
5.6.2 manipulate in any way any material which the Customer wishes to and/or does post on any web site or other system or any communication it wishes to send via or in relation to the Services; or
5.6.3 validate, vet or edit such material for usability, legality, content or correctness.
5.7 The Customer shall promptly provide to Midnight, or anyone authorised by Midnight, such information and assistance as may reasonably be requested from the Customer.
5.8 If, in Midnight’s opinion, the Customer is in breach of its warranties at clauses 5.4.4 or 5.4.5 above, Midnight shall be entitled to suspend the provision of the Services and/or terminate the Agreement without liability. Midnight also reserves the right to inform any appropriate public bodies of the details of the Customer’s use.
5.9 The Customer shall not resell, assign or transfer the benefit of the Services to any third party without Midnight’s express written consent consent.
5.10 Where the Customer has obtained Midnight’s consent to resell all or part of the Services to third parties, the Customer shall:
5.10.1 procure such third parties’ compliance with and acceptance of these General Terms and Conditions and the Product Terms;
5.10.2 be fully responsible for such third parties’ acts and omissions; and
5.10.3 fully indemnify and hold Midnight harmless against the third parties’ acts and omissions.
6.1 The Customer shall pay the Fees in cleared funds in the amount, method and intervals set out in the Order Confirmation. The Customer must register a payment method with Midnight prior to placing any order for Services and ensure that an active payment method remains registered with Midnight for the duration of the Agreement.
6.2 Unless stated otherwise, any total fee stated in the Order Confirmation is an estimate only and may increase depending on the Customer’s use. Any set up fee is payable immediately. Additional fees may be payable if the Customer exceeds the usage allowed for the Services purchased.
6.3 Midnight reserves the right to increase the Fees payable for the provision of the Services at any by giving the Customer 30 days’ notice of such price rise.
6.4 Any sums stated in the Order Confirmation are exclusive of VAT or similar taxes, levies or duties which are payable by the Customer in addition.
6.5 Any sums are due within 7 days of invoice date failing which Midnight reserves the right to charge interest at the rate of 8% per annum above the base rate, accruing daily, from the due date of payment to the date of payment whether before or after judgment. In the event of non-payment of any sum owing by the Customer Midnight reserves the right to pass the debt to a third party collection agency which may result in additional charges being made to the Customer.
6.6 Midnight may conduct a credit check on the Customer including, where the Customer is a corporate entity, the directors and shareholders of a Customer. The results of such credit check may be shared with Midnight’s Associated Companies and with other third party entities. The Customer consents to Midnight carrying out such checks and retaining and sharing the results of such checks.
6.7 Where the Customer authorises the payment of the Fees by the Customer’s chosen payment method, the Customer authorises Midnight to deduct other amounts which become due to Midnight, whether under the Agreement or otherwise, without obtaining further express authorisation from the Customer.
6.8 Without prejudice to its other rights and remedies, in the event of non-payment by the Customer within 14 days of the due date, Midnight shall be entitled to delete the Customer’s data from its equipment without any obligation to backup such data.
6.9 In the event that Midnight issues a credit to the Customer:
6.9.1 such credit or voucher is issued entirely at the discretion of Midnight;
6.9.2 such credit or voucher is non-refundable and cannot be exchanged for cash or used against the purchase of another voucher;
6.9.3 Midnight does not accept liability if the credit or voucher has been lost, stolen, destroyed or used without the Customer’s consent. Midnight shall not replace any credit or voucher under these circumstances or any remaining balance on a credit or voucher;
6.9.4 such credit or voucher must be used within 12 months of being issued failing which the credit or voucher will become void;
6.9.5 the transfer, resale or reproduction of any credit or voucher is prohibited and will cause such credit or voucher to become void; and
6.9.6 vouchers and credits may be used towards the purchase price of any Midnight product or service with any balance or the purchase price being payable in addition.
6.9.7 any credit on a Customer’s account shall be used by default to pay, or part-pay, any renewal fees for any Services ordered by a Customer.
6.10 Continuous Payment Authorities (‘CPA’)
6.10.1 The Customer permits Midnight to store the Customer’s payment details to take regular payments with the same card until the Customer expressly requests that Midnight do not store their card details. Customers accept that removing card details may result in their Services not renewing and potentially terminated in the event that a renewal payment is not made.
6.10.2 Midnight shall notify the Customer when the payment will be taken, whether the payment will be taken from the card on a monthly, yearly or two-yearly basis and the amount to be charged each time.
6.10.3 If the Customer purchases the Services online, Midnight shall display a purchase confirmation during the order process on the website and send a confirmation email to the Customer. If the Customer purchases a Service on the telephone, Midnight shall confirm the purchase on the telephone and send a confirmation email to the Customer.
6.10.4 Midnight reserves the right to take the payment from the Customer’s stored card at any time other than the agreed date, if it has reason to believe that the payment is due and owing. Midnight reserves the right to take a different amount than what was originally agreed, in circumstances where several invoices have built up over a period of time or additional fees have been added to the overall outstanding balance due to the Customer’s late payment.
6.10.5 The Customer agrees that the CPA authorises Midnight to make payment changes and any other changes where Midnight believes it is necessary in accordance with the Agreement. Midnight will endeavour to notify the Customer of any changes, before they take effect, in writing.
6.10.6 Midnight shall, in accordance with the CPA, provide the Customer with the Order Confirmation for any services purchased. The Customer accepts that Midnight will send an automated email to the Customer each time a payment has been taken from the card. This will constitute both a summary and confirmation of the payment.
6.10.7 Payments taken under the CPA will show on the Customer’s bank statement as being a payment to Midnight.
6.10.8 The Customer can amend the details of the CPA at any time by contacting customer support using the method(s) stated on Midnight’s website.
6.10.9 The Customer acknowledges that the CPA will continue until the Customer expressly requests to change or cancel the payment method used for the Fees. The Customer may at its sole discretion, choose what method they use to pay the Fees. Midnight will not charge the Customer a fee to cancel the CPA, however, the Customer may incur a fee if they fail to pay any Fees thereafter.
6.10.10 The Customer acknowledges that the Services and the Customer’s account will not be cancelled if the CPA is cancelled. The Customer agrees to continue to pay for the Services in accordance with this Agreement.
6.10.11 Further and in addition to clause 6.10.10 above Midnight reserve the right to cancel the Customer’s CPA if Midnight is no longer able to take payment from the stored card. In such circumstances the Customer may set up another CPA at the sole discretion of Midnight.
7. Confidential Information
7.1 Each party shall (unless required by law to the contrary):
7.1.1 keep confidential all information received from the other party under or in connection with this Agreement (‘the Confidential Information’);
7.1.2 not disclose the any Confidential Information to any third party without the prior written consent of the disclosing party save where such disclosure is necessary for the performance of this Agreement; and
7.1.3 not use any Confidential Information other than for the purpose of the Agreement.
7.2 Clause 7.1 shall not apply to the extent that such Confidential Information which:
7.2.1 is or becomes public knowledge otherwise than due to a breach of clause 7.1;
7.2.2 was in possession of the receiving party without restriction prior to receiving it from the disclosing party; or
7.2.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure.
7.3 Nothing in this clause 7 shall prevent either party from disclosing any Confidential Information as required by law and/or to a public or regulatory body, for the purposes of law enforcement or in connection with legal proceedings in the UK.
7.4 Either party shall be entitled to disclose the other party’s Confidential Information to its employees and subcontractors or professional advisors provided such disclosure is under conditions of confidentiality.
7.5 Midnight shall be entitled to share any Confidential Information with its Associated Companies either in the UK or based in another jurisdiction.
7.6 The obligations under this clause 7 shall survive termination of the Agreement.
8. Intellectual Property
8.1 The Customer acknowledges and accepts that it will not own or acquire any Intellectual Property Rights in or relating to the Services or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted in the Agreement.
8.2 The Customer will indemnify and keep Midnight indemnified from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgments which Midnight incurs or suffers as a consequence of infringement of any Intellectual Property Right of any third party arising directly or indirectly from:
8.2.1 the provision by Midnight of Services making use of information or specifications supplied by the Client;
8.2.3 the Client's failure to procure all necessary rights from third parties which are from time to time required in order for Midnight to be able legally to provide the Services; or
8.2.4 the use by Midnight in connection with the Agreement of the Client System and the Client Materials.
9.1 The provisions of this clause 9 set out the entire liability of Midnight (including any liability for the acts or omissions of its employees, consultants, agents and authorised representatives) to the Customer in relation to the Agreement.
9.2 Nothing in the Agreement excludes or limits Midnight’s liability for death or personal injury caused by the negligence of Midnight, fraud or a breach of section 12 of the Sale of Goods Act 1979.
9.3 Subject to clause 9.2 above, Midnight will not be liable to the Customer, whether in contract, tort, misrepresentation or otherwise (including negligence) for any consequential or indirect losses, costs, expenses or otherwise including, but not limited to, loss of profits, loss of revenue, loss of goodwill, loss of business or loss of opportunity.
9.4 Subject to clauses 9.2 and 9.3 above, Midnight’s total liability to the Customer shall not exceed one and a quarter times the amount of the Fees paid by the Customer, in relation to the Services, to Midnight in the 12 month period preceding the incident giving rise to the claim.
9.5 The Customer accepts that the allocation or risk under the Agreement is a fair reflection of the nature of the Services and the level of the Fees charged for the Services.
10. Customer Indemnity
10.1 The Customer shall fully indemnify and hold Midnight and its Associated Companies, employees, offices, agents and partners harmless from and against any action, demand, cost (on a full indemnity basis) losses, penalty, damage, liability claim or expense (including legal fees on an indemnity basis) whatsoever incurred by Midnight and arising from:
10.1.1 the Customer’s breach of the Agreement, negligence or other default;
10.1.2 the operation or break down or any IT system owned or used by the Customer; or
10.1.3 the Customer’s use of misuse of the Services.
11. Data Protection
11.1 Both parties warrant that they will comply at all times with all relevant data protection legislation, including the General Data Protection Regulations (‘GDPR’).
11.2 Where any Services provided by Midnight include hosting services and/or any services which involve the submission, collection and/or use of personally identifying or identifiable information about the Customer, or Customer’s clients, the Customer accepts that it is acting as the data controller and Midnight is the data processor. In such circumstances, the Customer confirms that it will execute Midnight’s Data Processing Addendum (“DPA”) which governs the transfer of personal data both within and outside of the EEA. The Customer further accepts that its failure to execute the DPA shall not prevent the terms of the DPA applying and that the DPA is incorporated by reference in this Agreement, where applicable.
11.3 To the extent that Midnight acts as a data processor under GDPR then Midnight shall:
11.3.1 only act on the written instructions of the Customer as the data controller;
11.3.2 not use a sub-data processor without the Customer’s prior written authorisation;
11.3.3 co-operate with relevant supervisory bodies, including the Information Commissioner’s Office, in accordance with Article 31 of GDPR;
11.3.4 ensure it has adequate technical and organisational measures in place to ensure the security of its processing in accordance with Article 32 GDPR;
11.3.5 keep records of its processing activities, where relevant, in accordance with Article 30.2 of GDPR;
11.3.6 on termination of the Agreement, howsoever arising, delete all of the Customer’s data; and
11.3.7 notify any personal data breaches affecting the Customer’s data, to the Customer in accordance with Article 33.
12. Force Majeure
12.1 Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, network failure, systems fault, unauthorised use or access to the IT systems of Dreamstar Digital or the Customer, explosion, flood, epidemic, lock outs (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party's workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control
13. Term and Termination
13.1 Midnight shall provide the Services for the Initial Term. Following the Initial Term, the provision of the Services shall continue until terminated by either party invoking the termination rights under these General Terms and Conditions.
13.2 Where the Customer is a Consumer, the Customer is entitled to terminate the Agreement within 14 days starting from the day after The Customer receives the Order Confirmation unless the Customer has agreed that Midnight shall commence providing the Services within that 14 day period.
13.2.1 The Customer is deemed to have expressly agreed that Midnight will commence providing the Services within 14 days by clicking the ‘Complete Order’ button on the website.
13.2.2 If the Customer is not prepared to waive these rights then Midnight may be unable to commence provision of the Services until the 14 day cooling off period has expired.
13.2.3 To effect termination the Customer must contact Midnight’s customer support using the method(s) set out on its website.
13.3 Without prejudice to any other termination rights set out elsewhere in these General Terms and Conditions, either party may terminate the Agreement, or the provision of any part of the Services, for convenience by serving 30 days written notice on the other party, such notice to expire on or after the end of the Initial Term.
13.4 Either party may terminate the Agreement immediately in the event that the other party:
13.4.1 has committed any material breach of this Agreement which is incapable of remedy;
13.4.2 has failed to remedy any remediable breach having been given 14 days written notice to do so;
13.4.3 becomes the subject of an Insolvency Event; or
13.4.4 ceases or threatens to cease trading.
13.5 Midnight may terminate the Agreement without notice and without liability in the event that the Customer fails to pay, when due, any sum owing to Midnight. Such termination by Midnight may take effect during the Initial Term and shall not relieve the Customer of any liability to pay for the remainder of the Initial Term. #
13.6 Midnight may terminate the Agreement with immediate effect in the event that the Customer is rude, aggressive or violent towards any Midnight employee or in any other circumstances where the Customer’s conduct is unacceptable to Midnight.
13.7 Termination of the Agreement and/or the provision of any Services, howsoever arising, shall be without prejudice to any sums owing by the Customer to Midnight.
14. Post Termination
14.1 Termination of the Agreement is without to any rights or duties of either party accrued prior to termination.
14.2 Clauses in the Agreement which are expressly or impliedly intended to continue in effect notwithstanding termination of the Agreement shall continue to bind the parties post termination.
14.3 Upon termination of the Agreement, for whatever reason, Midnight may, without further notice to the Customer, irretrievably delete the Customer’s data from its systems and any equipment.
14.4 Upon termination of the Agreement, for whatever reason, the Customer shall:
14.4.1 cease to use the Services and any Software;
14.4.2 erase any Software from the Customer’s systems and confirm to Midnight that it has done so;
14.4.3 return any Midnight equipment or any other Midnight materials to Midnight without delay; and
14.4.4 make payment of any sums due to Midnight for the provision of the Services and for any out of pocket or pro-rata expenses incurred by Midnight including any registration or licencing fees.
14.5 Termination by the Customer within the Initial Term shall only take effect once the Customer has settled on fees due and owing for the Initial Term.
15.1 The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.
16.1 The failure or delay by either party in exercising any right, power or remedy of that party under the Agreement will not in any circumstance impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either party of any right, power or remedy under the Agreement will not in any circumstance preclude any other or further exercise of it or the exercise of any other right, power or remedy.
16.2 Any waiver by either party of a breach of or default under any of the terms of the Agreement by the other party is not deemed a waiver of any subsequent breach or default and in no way affects the other terms of the Agreement.
17. Assignment and Subcontracting
17.1 The Customer may not assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to its Associated Company) without the prior written consent of Midnight. Any consent provided by Midnight under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of the Agreement as if they were the Customer and that the Customer guarantees the assignee’s or licensee’s performance as applicable. Midnight may sub-contract or assign any or all of its rights and obligations under the Agreement
18.1 No variation or amendment to the Agreement (including any Order Confirmation) is effective unless confirmed in writing by an authorised representative of Midnight.
19.1 Any notice to be given or made by either party under or in connection with the Agreement must be in writing and given or made to the other party at its address stated in the Order Confirmation or to such other address as either party may from time to time notify to the other. Every notice, if so addressed, is deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the relevant party, if sent by prepaid first class post, two business days after the date of posting and if transmitted by facsimile, at the time of transmission (provided a confirmatory letter is sent by prepaid first class post) provided that, where, in accordance with the above provisions, any notice would otherwise be deemed to be given or made on a day which is not a business day or after 4.00 p.m. on a business day, such notice shall be deemed to be given or made at 9.00 a.m. on the next business day. Midnight may additionally serve notice on the Customer under or in connection with the Agreement by email to the Customer at the contact email address registered by the Customer, and in such a case the email will be deemed received once transmitted from Midnight’s email server.
20. Law and Jurisdiction
20.1 The Agreement shall be construed in accordance with and governed by English Law.
20.2 The English and Welsh courts shall have exclusive jurisdiction over any disputes arising out of or related to the Agreement.