Escalion Terms and conditions

Terms of Use

1. DEFINITIONS

   “Escalion” or “We” or “Us” means Escalion S.à r.l., a Luxembourg law governed private limited liability company with registered address at 44, Avenue John F. Kennedy, L-1855, Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B180.273.

   “Escalion Account” means the account opened for you by Escalion that allows you to monitor the transactions we process for Your Customers, to configure settings as regards the payment process (like 3D configurations, process for blacklisting customers, etc.), to download records about Your Customers or reports of their transactions, to add or remove administrators to your account, etc.

   “Escalion Payment System” means the software solution and technology know-how owned or operated by Escalion for processing payments or related tools like the Escalion.com payment page, the Escalion payment API, the Escalion invoicing system, etc.

   “Customer Support” means our service with dedicated employees available to answer to your requests with regard to these Terms.

   “Merchant” means any business (including a sole proprietor, individual trader, auto entrepreneur, etc.), bona fide charitable organization, and other entity or legal person, which is eligible to apply for an Escalion Account to use the Services described in these Terms of Use.

   “Merchant’s Website(s)” means any website of a Merchant, operated and controlled by such Merchant, through or on which such Merchant’s Customers, as defined below, purchase Merchant’s goods or services.

   “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular, by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

   “Services” means the payment processing and related services like fraud prevention, transaction analytics, etc., that Escalion provides to Merchants, allowing them to accept payments from purchasers of Merchant’s goods or services (hereinafter referred to as the “Merchant’s Customer(s)” or “Your Customers”). A more detailed description of the Services is published on Our Website and additional resources may be made available to You upon request.

   “Visitor” means any physical person who enters on and/or visits the website www.escalion.com (hereinafter referred to as the “Escalion’s Website” or “Our Website”) without registering to or purchasing the Services of Escalion.

   “You” means a Merchant or a Visitor (as the case may be).

2. ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS OF USE

   By entering and/or registering on Our Website and by using this Website and/or the Services provided to Your Customers on your behalf by Escalion, You give Your consent to and accept the following:

   • to comply with and be bound by these Terms & Conditions (hereinafter referred to as the “Terms of Use”) and any operating rules, regulations, policies, and procedures that may be modified from time-to-time on the Website (collectively, the "Terms"). Any violation of these Terms may result in the suspension of the Services or such other action permitted.
   • authorize Escalion to process Your Personal Data related to Your visit to Our Website and to authorize the processing of Your Personal Data provided during the registration process in accordance with the data protection terms set forth in section II of these Terms of Use and in the Privacy Policy located here.
   • give instructions to Escalion to process Personal Data of Your Customers and monitor the full alignment of the Escalion Privacy Policy applicable to Merchant’s Customers located here with said instructions.
   
   

   These Terms of Use shall govern the relationship between Escalion and You, as well as any business entity of which You have any legal or equitable interest. If any portion of these Terms of Use is deemed unenforceable by a court of competent jurisdiction, it shall not affect the enforceability of the other portions of these Terms of Use.

3. LAWFUL USE

   You agree that You will not use the Services at any time for the purpose of offering any product(s) or service(s), which is/are unlawful or violate(s) any applicable local, state, federal, national or international law, statute, ordinance, or regulation, including without limitation the sale/offering of tobacco products, drugs, firearms, weapons, satellite and cable TV descramblers, unlicensed lotteries or gambling services, goods or services that infringe the intellectual property rights of a third party, etc.

   If You conduct or attempt to conduct any transaction in violation of the aforementioned prohibitions and/or in violation of the Terms, We reserve the right to:

   • reverse the transaction; and/or
   • report the transaction to the relevant law enforcement agency; and/or
   • claim damages from you.
   
   

   It is Your responsibility, not Escalion’s, to ensure that You use the Services only for a business / activity which complies with any and all applicable laws and regulations. The mere fact that Escalion accepts to process payments through or with the Escalion Payment System is not an indication of the legality of the supply or provision of Your good(s) and/or service(s) to Your Customers.

   Escalion reserves the right to cooperate with law enforcement and other authorities in investigating claims of illegal activity including, but not limited to, illegal transfer or availability of copyrighted material, trademarks, child pornography, postings or e-mail containing threats of violence or other illegal activity.

   You may not use the Services hereto to conduct any personal or non-commercial transactions, or for any other purposes prohibited by these Terms.

4. MERCHANT ACCOUNT

   Registration and permitted activities

   If You are eligible to apply for a Merchant Account to use the Services described in these Terms, Escalion shall open Your Merchant Account that shall enable You to administer and monitor the transactions of Your Customers processed by Escalion on your behalf. In general, any lawful business is eligible to benefit from the Services hereto; however, Escalion reserves the right to a complete independent “KYC” review/study before committing to enter into a separate Merchant agreement with You (hereinafter referred to as the “Merchant Agreement”) upon Escalion’s acceptance of a Merchant and integration into Escalion’s Merchant’s portfolio.

   When You apply for a Merchant Account, You or the person or people submitting the application (hereinafter referred to as Your “Representative(s)”) must provide Us with Your business or trade name, address, email, phone number, business identification number, URL, the nature of your business or activities, and certain other information about You that we require in the application form.

   We may also collect personal information (including name, birthdate, and government-issued identification number) about your beneficial owners, principals, and your Merchant Account administrator(s).

   Upon review and approval of all required information, You will be asked to enter into a Merchant Agreement with Escalion relating to the opening of Your Merchant Account. The Merchant Agreement comprises these Terms and additional terms, which require the parties’ mutual approval.

   Business Representative(s)

   You and Your Representative(s) individually affirm to Escalion that Your Representative(s) is/are authorized to provide the information described above on Your behalf and to bind You to these Terms. Furthermore, Your Representative(s) must either obtain the consent of Your board or an authorized officer. We may require You or Your Representative(s) to provide additional information or documentation demonstrating Your Representative’s authority.

   Without the express written consent of Escalion, neither You nor Your Representative(s) may register or attempt to register for a Merchant Account on behalf of a user Escalion previously terminated from use of the Services.

   If You are an individual trader, sole proprietor, auto entrepreneur, etc., You and Your Representative(s) also affirm that Your Representative(s) is/are personally responsible and liable for Your use of the Services and Your obligations to Your Customers, including payment of any amounts owed under these Terms. If You are an individual, sole proprietor, auto entrepreneur, etc., and not at least 18 years old, Your Representative(s) must be Your parent or legal guardian.

   Any such approving board, authorized officer, parent, or legal guardian is responsible towards Escalion and is legally bound by these Terms as if it had agreed to these Terms itself.

   Your relationship with Escalion

   At any time during the term of these Terms and Your use of the Services, We may require additional information from You to verify beneficial ownership or control of the business, validate information You provided, verify You or Your Representative’s identity, and assess the risk associated with Your business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to Your business, its beneficial owners or principals.

   We may also request that You provide copies of financial statements or records pertaining to Your compliance with these Terms. Your failure to provide this information may result in suspension or termination of Your Merchant Account.

   You authorize Us to retrieve information about You from our service providers, including credit and information bureaus. You acknowledge that this may include Your name, addresses, credit history, and other data about You or Your Representative(s). You acknowledge that Escalion may use Your information to verify any other information You provide to Us, and that any information we collect may affect our assessment of Your overall risk to our business. You acknowledge that in some cases, such information may lead to suspension or termination of Your Merchant Account. Escalion may periodically update this information as part of Our underwriting criteria and risk analysis procedures.

   Changes to Your business, keeping Your Merchant Account current

   You agree to keep the information in Your Merchant Account up to date. This includes, informing Us about any changes affecting You, the nature of Your business and Your activities, Your Representative(s), beneficial owners, principals, or any other pertinent information.

   We may suspend Your Merchant Account or terminate these Terms if You fail to keep this information current.

   You also agree to promptly notify Us in writing no more than three (3) days after any of the following occur:

   • You are the subject of any voluntary or involuntary insolvency petition or proceeding, receivership, bankruptcy, or similar action;
   • there is an adverse change in Your financial condition;
   • there is a planned or anticipated liquidation or substantial change in the basic nature of Your business;
   • You transfer or sell 25% or more of Your total assets, or there is any change in the control or ownership of Your business or parent entity; or
   • You receive a judgment, writ or warrant of attachment or execution, or levy against 25% or more of Your total assets.

   Your Relationship with Your Customers

   As a payment processor, Escalion processes payments of Your Customers under Your Instructions, and You agree to provide Your Customers with terms, conditions, and privacy policies that are drafted in a clear way to minimize any confusion of the entity which provides good(s) or service(s) to Your Customers.

   To avoid any potential disputes, You agree to indicate to Your Customers that You are the seller of good(s) or service(s) and that Escalion is Your payment processor handling transactions on Your behalf.

   Your name (or the name used to identify You) must appear on Your Customers’ invoices. We provide You the Services to facilitate transactions with Your Customers.

   You know Your Customers better than We do, and You are responsible for Your relationship with them. You affirm that You are solely responsible for the nature and quality of the good(s) or service(s) You provide, and for delivery, support, refunds, returns, and for any other ancillary services You provide to Your Customers.

   It is not Escalion’s obligation to know or investigate if any particular purchase, sale, order, or any other transaction of Your Customers is accurate or correct. You are solely responsible for knowing whether a transaction initiated by Your Customer is erroneous (e.g., if Your Customer is ordering one item when it meant to order another) or suspicious (e.g., unusual or large purchases, or requests for delivery to a foreign country where this typically does not occur). If You are unsure if a transaction is erroneous or suspicious, You agree to research the transaction Yourself and to contact our Customer Support immediately before We process said transaction (if it is not already too late). You are solely responsible for any losses You incur due to erroneous or fraudulent transactions in connection with Your use of the Services.

   Our Customer Support

   We provide You with resources and documentation regarding the Services hereto and the Escalion Payment System on Our Website. We may also provide You with support to resolve general issues relating to Your Merchant Account and Your use of the Services when You contact Our Customer Support. Our Customer Support is here for You, and will not communicate directly with Your Customers in case one of Your Customers contacts Us directly.

   You are solely responsible for providing support to Your Customers regarding transaction receipts, good or service delivery, support, returns, refunds, and any other issues related to Your good(s) and service(s) and business activities. We are not responsible for providing Customer Support to Your Customers unless we agree to do so in a separate agreement with You.

5. REFUND POLICY, LEGAL DISPUTES

   Refund Policy

   In the event of an unauthorized, non-executed or incorrectly executed payment transaction You must notify Escalion thereof, without undue delay, but in any event not later than within thirty (30) days after the date of the payment transaction.

   Escalion will carefully examine each refund request and other data at its disposal and will proceed with the refund to Your Customer upon reception of Your instructions to do so.

   Your Customer shall be entitled to a refund by Escalion, in the case when Escalion discovers that Your Customer transaction was a fraudulent one – provided that it was not Your Customer who acted fraudulently.

   In case of any fraudulent transaction, Escalion reserves the right to use all available information at its disposal during any kind of legal procedure (for details please see the data protection section II below and Our Privacy Policy applicable to Merchant’s Customers).

   During such legal procedures Escalion might involve other, professional investigator parties and share certain information in order to comply with applicable laws, vindicate its rights and represent the best interests of its customers. Escalion grants full cooperation with legal authorities investigating fraudulent transactions and other matters falling under legal jurisdiction and responds to subpoenas and court orders.

   Where Your Customers are entitled to redress, upon Your instructions, Escalion will refund Your Customer the amount of any unauthorized, non-executed or defective payment transaction. In any case Escalion will, on Your request, make immediate efforts to trace the payment transaction and notify You of the outcome.

   If You have acted fraudulently, intentionally, or through gross negligence, breached these Terms of Use, You will be liable for all losses incurred in respect of any unauthorized transactions.

Data Protection

1. OVERVIEW

   Each party undertakes to comply with its respective obligations under the applicable data protection laws applicable to controllers, including, but not limited to the EU General Data Protection Regulation 2016/679 (“GDPR”), the e-Privacy Directive 2002/58/EC (as amended and replaced from time to time), their national implementing legislations and any applicable codes of practice and best practice guidance issued by the relevant authorities (collectively, the “Data Protection Laws”).

   Each party will provide the other party any cooperation reasonably requested to enable the other party’s compliance with this section II and with the Data Protection Laws.

   Escalion shall be responsible for opening Your Merchant Account and for providing You the Services and the Customer Support in accordance with these Terms.

   The Merchant shall be responsible towards Merchant’s Customers who purchase good(s) or service(s) on Merchant’s Website(s). It undertakes to have valid legal basis required to comply with the Data Protection Laws for the processing of Personal Data of Merchant’s Customers (for which You are a data controller), and to comply with the consent requirement (if required), notably as regards the placement of cookies on its Merchant’s Websites (as the case may be).

   In respect of any processing of Your Personal Data for which We are the data controller, We undertake to process Your Personal Data in compliance with the Data Protection Laws and in accordance with Our Privacy Policy applicable to Merchants / Visitors.

   In respect of any processing of Personal Data of Merchant’s Customers by Escalion in the course of providing You the Services hereto, in which case We act as a data processor, We undertake to provide You with any cooperation reasonably requested to enable Your compliance with the Data Protection Laws.

2. TRANSPARENCY

   As the case may be, each party shall conspicuously include on its website(s) a privacy policy that describes how such party collects, uses, stores and discloses end users’ personal information, if any is collected, and, notably inform the users of their rights in respect of such processing in accordance with the applicable Data Protection Laws. In particular:

   • The Merchant shall take appropriate measures to provide end-users with information about how personal information of Merchant’s Customers is being processed by the Merchant or any of the parties, which shall at a minimum include all information required by Articles 13 and 14 of the GDPR, as the case may be, in a concise, transparent and easily accessible form, using clear and plain language (“Merchant Privacy Policy”).
   • Escalion shall take appropriate measures to provide end-users with information about how the personal information of Merchant’s Customers is being processed by Escalion, which shall at a minimum include all information required by Articles 13 and 14 of the GDPR, as the case may be, in a concise, transparent and easily accessible form, using clear and plain language (“Escalion Privacy Policy applicable to Merchant’s Customers”).
   
   

3. PERSONNEL

   Each party shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to Personal Data, ensuring in each case that access is:

   • strictly limited to those individuals who need to know and/or access the relevant Personal Data; and
   • is strictly necessary for the purposes of these Terms and to comply with the Data Protection Laws in the context of that individual's duties.
   
   

   Each party shall ensure that all individuals referred to in this clause 3 are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.

4. Security and Confidentiality of Data

   Each party shall in relation to the Personal Data, implement appropriate technical and organizational measures to ensure an appropriate level of security, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In doing so, each party shall take into account:

   • the state of the art, the costs of implementation and the nature, scope, context and purposes of processing; and
   • the risk of varying likelihood and severity for the rights and freedoms of natural persons.
   
   

   In assessing the appropriate level of security, each party shall in particular take into account the risks that are presented by the processing activities, including any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.

5. Data Processing Agreement

   Concomitantly with the negotiation and signature of a Merchant Agreement, the parties agree that they will negotiate and sign a Data Processing Agreement underlying the parties’ obligations in respect to Data Protection Laws, in particular such agreement shall comprise:

   • the process for data subjects to exercise their rights under the Data Protection Laws,
   • the process with respect to contracting with sub-processors,
   • the Personal Data breach process,
   • the modalities of transfer of Personal Data to countries outside of the EEA, and
   • in general, all information as it may be required by the Data Protection Laws.
   
   

   Failure for the parties to conclude concomitantly the Merchant Agreement and the Data Processing Agreement, the Merchant shall be automatically considered as non-eligible for the Services hereto.

6. PCI DSS Compliance

   Escalion is compliant with the Payment Card Industry Data Security Standard (PCI DSS). The PCI DSS, a set of comprehensive requirements for enhancing payment account data security, was developed by the founding payment brands of the PCI Security Standards Council, including American Express, Discover Financial Services, JCB International, MasterCard Worldwide and Visa Inc.

Spam policy

You are prohibited from sending unsolicited electronic messages (by SMS, MMS, e-mail, messages on social networking websites and the like) and faxes or making calls using an automated calling system, the contents of which are of a commercial, charitable or ideological nature.

Escalion advocates the following principals regarding establishing compliance with the relevant spam regulations:

• Escalion will not tolerate spam and distances itself from any actions related to spamming. Escalion does not partake in or overlook spamming.
• We do everything in Our power to protect You from deleterious effects of spamming, therefore We DO NOT TOLERATE spamming and report all related actions to the relevant authorities in Luxembourg that monitor any contravention of the prohibition of unsolicited communication and may impose sanctions.
• We consider the use of all legal proceedings in case of spamming inflicting a loss on Escalion. We DO NOT TOLERATE spam that in any way disturbs Escalion’s Services or Merchants.

The following activities performed by You or any other person or entity (including but not limited to merchants) shall be considered spamming and harassment:

• Attempted browser hijacking, reconfiguration of users registry or system preferences, automatic downloads (i.e. dialers) and other forms of technical manipulation of a user’s computer, browser, or internet connection is strictly prohibited by Escalion;
• Engaging in unlawful activities as referred to in section I point 3 of these Terms of Use performed to draw attention to Merchant’s Website(s) or to any other website within Escalion’s networks;
• Impersonating another Merchant or otherwise falsifying one’s user name in e-mail, Usenet postings, on Internet Relay Chat (IRC), or with any other Internet service (i.e., this restriction does not preclude the use of nicknames in IRC or the use of anonymous remailer services);
• Posting a single article or substantially similar articles to an excessive number of newsgroups (i.e., more than 20) or continued posting articles being off topic according to the newsgroup charter, or which provoke complaints from the regular readers of the newsgroup for being inappropriate;
• Sending unsolicited mass e-mails (i.e. to more than 25 users) that provoke complaints from the recipients;
• Continued harassment of other individuals on the Internet after being asked to stop by those individuals and/or by Escalion;
• Mail bombing, i.e., sending large volumes of unsolicited e-mail to individuals or to individual business accounts.

What is further considered spam?

• manipulating messages, such as email headers, sent to or through Escalion’s computer systems in a way that may deceit Escalion Merchants or Merchant’s Customers;
• Relaying email from a third party’s mail servers without the permission of that third party;
• Sending, relaying or causing to be sent false, deceptive information or that is otherwise against the business interest of Escalion;
• Using or causing to be used Escalion’s computer systems or Escalion Payment System to facilitate the transmission of unsolicited or unauthorized material. This includes any promotional materials, URLs or any other form of unauthorized solicitation that You may upload, post, email, transmit, or otherwise make available;
• Uploading, posting, emailing, or transmitting the same message, URL, or post multiple times.

Consequences of spamming:

• The aforementioned types of conduct and all related actions shall be reported to the responsible authorities and can be the basis of immediate suspension of the Services pending investigation by Escalion and may result in the termination of any and all accounts held by You, the corporation, or website associated with these violations;
• Spamming through Escalion’s website or Escalion Payment System or disturbing Merchants is a violation of these Terms of Use;
• Violation of our Terms of Use or spamming may result in legal actions against You or in the suspension of the Services or such other action permitted. Escalion cannot and shall not be held responsible by You for any possible loss as a result of such actions.

Please contact the Escalion Support team through https://www.escalion.com/en/contact/client-service or by email to support@escalion.com in case You would like to report spam. Escalion Support team investigates all reports as soon as possible.

Copyright and Trademark Policy

In accordance with Luxembourg Laws and international or EU regulations governing any international property rights, Escalion will examine notices of infringement of rights of third parties by users of Our Website, the Escalion Payment System or the Services, and, if possible, take measures against it.

If You are of the opinion that a user of Our Website infringes Your rights, please inform Us of this by contacting the Escalion Support team through https://www.escalion.com/en/contact/client-service or by email to support@escalion.com

This notice should:

• include a statement that in Your view Your rights have been infringed upon and why;
• include the URL from which the material that in Your opinion infringes Your rights can be found on Our Website;
• include contact details where Escalion can contact You, such as Your name, address, telephone number and email address;
• include a statement supported by documentary evidence that the information in Your notice is accurate and complete and – where it concerns the infringement of intellectual property rights - that You are the owner of the respective intellectual property rights;
• be signed by the owner of the intellectual property rights or the person who is demonstrably authorized to act on behalf of the owner;
• where it concerns the infringement of intellectual property rights - include a description of the work or works which in Your view have been infringed upon with a specification of precisely what the infringement is.

Escalion reserves the right to forward such proper notice to the person(s)/or company responsible for the content to which the notice refers. If it is evident from the notice that the content is manifestly unlawful, Escalion will remove it or make it inaccessible.

Escalion reserves the right not to grant a request to remove or make inaccessible content if it has well-founded reasons to doubt the accuracy of the notice or the lawful nature of the evidence submitted or if the content to which the notice refers does not appear to be manifestly unlawful. Within that scope Escalion may for instance require a judicial decision of a competent court in Luxembourg, which decision demonstrates that the content concerned is manifestly unlawful. Please note that Escalion will not in any way be a party to any dispute between the person having issued the notice and the user to which the notice refers.

By issuing a notice You indemnify Escalion and all affiliated companies as well as its board, board members, employees, representatives and legal successors against any claim of third parties with regard to removing or making inaccessible content or information. Such indemnification also covers the damage that Escalion suffers and the costs it incurs or will yet suffer or incur, or the costs which Escalion has to incur in relation to such claim, including – but not limited to – reimbursing the costs of legal assistance.

The content on Our Website, including without limitation, the text, software, scripts, graphics, photos, videos, interactive features and the like (hereinafter referred to as the “Content”) and the registered trademarks, service marks and logos contained therein (hereinafter referred to as the “Marks”), are owned by or licensed to Escalion, and are subject to copyright and other intellectual property rights under Luxembourg and foreign laws and international conventions.

The Content on Our Website is provided to You “AS IS” for Your information and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Escalion and/or the respective owners.

Escalion reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of proprietary information of third parties obtained through the Website for any commercial purposes. If You download or print a copy of the Content for personal use, You must retain all copyright and other proprietary notices contained therein. You are not permitted to multiply, decompile or reverse-engineer the software made available, if any. Furthermore, You agree not to circumvent, disable or otherwise interfere with security related features of the Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website or the Content therein.

Escalion is the registered trademark of Escalion. All other company and product names referenced herein are the trademarks or registered trademarks of their respective holders. This list may be modified from time-to-time in Escalion's discretion. You shall not register or attempt to register any of Escalion's Marks that would reasonably be deemed to be confusingly similar to any of Escalion’s Marks. You shall comply with all standards with respect to Escalion’s Marks and all uses of the Marks shall be consistent with Escalion’s standards.

Miscellaneous

Termination and effect

These Terms of Use are concluded for an indefinite period. The Terms of Use will continue to apply until terminated by either You or Escalion as set out below.

Without derogating from any other right to which Escalion is entitled under the Terms, and/or under applicable law, it is hereby agreed that Escalion has the right, at its sole discretion, to block processing in any jurisdiction at any time and for any period of time. Escalion may further terminate access to Our Services, with or without cause, at any time, and effective immediately.

To block processing or termination shall be accompanied by a written or electronic notice to You. Escalion shall not be liable to You or any third party for termination. Should You object to any provision of the Terms or any subsequent modifications thereto, Your only recourse is immediately to:

• terminate use of the Services; and
• notify Escalion of such termination.

Upon termination of access to the Services, Your right to use the Website shall immediately cease.

Upon any termination of these Terms of Use constituting an agreement between Escalion and You, all provisions regarding indemnification, warranty, liability and limits thereon and/or protection of intellectual property and other proprietary rights and trade secrets, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose.

Indemnification

You agree to defend, indemnify and hold harmless Escalion, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debts, and expenses (including but not limited to attorney's fees) arising from: (i) Your violation of any term of these Terms of Use; (ii) Your use of and access to the Website; (iii) any claim that one of the Merchant’s Website(s) owned or operated by You or Your affiliated entities caused damage to a third party; or (iv) Your violation of any third party right, including without limitation any copyright, property, or privacy right. This defense and indemnification obligation will survive these Terms of Use and Your use of the Website and/or Services.

Limitations of liability

Under no circumstances, including, but not limited to, negligence, shall Escalion or any of its related, affiliated companies be liable for any direct, indirect, incidental, special, consequential or punitive damages that result from the use of, or the inability to use the Services. You specifically acknowledge and agree that Escalion is not liable for any defamatory, offensive or illegal conduct of any customers, or for any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, alteration of or use of records, whether under contract or tort theory, or under any other cause of action, for any amount over and above the amount paid by You to or through Escalion.

ESCALION WILL UTILIZE ITS REASONABLE SKILL AND CARE TO MAINTAIN ACCEPTABLE PERFORMANCE OF ITS AUTOMATED FINANCIAL TRANSACTION PROCESSING AND ANCILLARY RELATED SERVICES, BUT ESCALION.COM MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER. Escalion cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. Escalion will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted, received, or stored on its system. Escalion will not be liable to You or any third parties for any claims or damages which may be suffered by You or such third parties, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, unauthorized access to the website of You, merchants or other third parties as a result of hackers or password trading, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by Escalion’s fault or negligence. Escalion will not be responsible for the website(s) owned or operated by You, by merchants or by other third parties not being accessible on the Internet due to circumstances not under Escalion’s direct control such as individual Internet user's own equipment capabilities, limitations, other Internet service provider limitations and/or browser software limitations. Escalion may discontinue any Services, or may require fulfillment of conditions Escalion may choose to impose as a prerequisite for continuing any Services upon ten (10) days notice to You. However, Escalion may discontinue Services immediately for fraud committed by You, illegal activity, or violations of its Terms. In no event will Escalion be liable to You or to any other entity for any indirect, special, incidental and/or consequential damages of any kind, arising out of or in connection with the provision of its Services hereunder, however caused, whether for breach of contract, negligence or otherwise, even if Escalion has been advised of the possibility of such damages.

Entire agreement

These Terms of Use define the contractual relationship with You and constitute a legal agreement between Escalion and You, as well as any business entity of which You have any legal or equitable interest and sets forth the full and complete understanding between You and Escalion with respect to its subject matter, and supersedes all prior understanding or agreements, whether written or verbal.

These Terms of Use may be modified upon notice by Escalion to You. Unless contrary to law or otherwise stated, each provision of these Terms of Use shall survive termination. The prevailing party in any suit to enforce the terms hereof shall be entitled to recover his/her/its reasonable attorneys' fees.

Independent contractor

You acknowledge that Escalion is an independent sales organization/member service provider operating under applicable internet-capable merchant bank rules and regulations and is an independent contractor and not an agent of the bank.

Further, You acknowledge that Escalion is not and shall not be responsible, either directly or indirectly, for any act or failure to act of any bank or any agent of any bank in the processing of and providing for the payment of charges created by credit or debit cardholders as set forth herein.

These Terms of Use are not intended to and shall not be interpreted to create a joint venture or partnership or formal business entity of any kind between or among Escalion and You. Each party shall act as an independent contractor and not as an agent of the other party for any purpose and neither party shall have any authority to bind the other party.

Third party services

Escalion reserves the right to use third party service providers that will assist Escalion to provide high end Services to You.

Without derogating from the generality of the above, You further acknowledge that the supply of some of the Services under these Terms of Use, and their quality, are all subject to the receipt of such services by Escalion from a third party service provider and to the quality of such services.

It is further agreed and clarified that Escalion shall not be liable for any delay in or failure to supply the Services (including but not limited to any claim with regard to their quality) if that delay or failure or claim are connected to and/or caused by a third party service provider.

Force majeure

Escalion shall not be bound to meet any obligation if prevented from doing so as a consequence of force majeure, including but not limited to any non-attributable failure in the performance of an obligation of any supplier of Escalion, fire, measures taken or imposed by any government or any other event beyond the control of Escalion. Escalion will use reasonable efforts, under the circumstances, to immediately notify You of the circumstances causing the delay and to resume performance as soon as possible. If a situation of force majeure has lasted for more than 2 (two) months, both Escalion and You shall have the right to terminate these Terms of Use constituting a legal agreement between Escalion and You in writing.

Language of the Terms

We would like to inform You that for all legal statements, statutory declarations made by Escalion which can be found on this Website, You agree that We can only take the English version as a basis and governing language despite its translation into any other language. We do not accept any legal claim or other complaint for any misunderstandings as a result of mistranslations, as the English language shall prevail.

Legal Disputes, Governing Law and Jurisdiction

In the event of any billing related dispute or problem with the Services, please contact the Escalion Support team online or by email to support@escalion.com.

Please note that Escalion Support team does not provide customer support to Your Customers regarding complaints emerged in connection with the good(s) and/or the service(s) provided by Merchants. In order to resolve such problems please provide Your Customers with details of how they can contact you.

These Terms and the relations arising out from it between You and Escalion will be governed by the law of Grand Duchy of Luxembourg.

Any disputes arising between You and Escalion will be settled amicably and only when this solution is not efficient, the competent jurisdiction for the disputes arising from these Terms will be the courts of the Luxembourg city.