Terms of Use

Terms of Use

Welcome to Prevail.com (“Site”). The Site is owned and operated by First Quality Enterprises, Inc. and/or its affiliates and subsidiaries (together, “we” and “us”). The following are the terms and conditions (“Terms of Use”) of access and use of the Site and any associated services available on the Site. These Terms of Use constitute a legal agreement (“Agreement”) between you, the user (“you”), and us. Please read carefully.

I. Your Agreement.

A. TERMS OF USE. BY ACCESSING THE SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS OF USE, PLEASE DO NOT USE THE SITE AND EXIT IMMEDIATELY. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS OF USE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SITE AND ANY AFFILIATE SITES FOLLOWING THE POSTING OF CHANGES TO THE TERMS OF USE WILL MEAN YOU ACCEPT THOSE CHANGES. Unless we provide you with specific notice, no changes to our Terms of Use will apply retroactively. Certain specific features or services provided on the Site may also be subject to additional terms and conditions that will be provided separately.

II. About the Site.

A. Purpose. The Site is intended to provide you with information about our products. It is not a substitute for professional medical advice.

B. Content. The Site may include the following features, among others: descriptions and buying information for Prevail products, blogs about Prevail products and health topics, a forum for your comments and the ability to sign-up for our email newsletter. The Site may also include third-party advertisements and links to external third party websites and content (“Links”), some of which may contain products and services for sale . The video portions of the Site are illustrative examples of experiences that may occur from the use of Prevail products and are not real stories.

C. Registration. Registration may be required for you to post comments to the Site and/or participate in other activities on the Site. To register, you will need to provide us with your email address and create a username and password for yourself. You are entirely responsible for any and all activities by anyone utilizing your username and password. You agree to immediately notify us of any unauthorized use of your username and password or any other breach of security of which you become aware.

D. Termination. You or we may suspend or terminate your registration or your use of the Site at any time with or without cause.

III. Ownership.

A. The Site and its Content. All of the material featured or displayed on the Site, including without limitation all text, graphics, photographs, images, moving images, sounds and illustrations (“Content”) is owned by us, our licensors, our agents or our suppliers (excluding your Submissions, as defined below). All elements of the Site, including without limitation the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. Except as may be otherwise expressly indicated by us in specific documents posted on the Site, you are authorized to view, play, print and download Content for personal, informational, and noncommercial purposes only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any Content. The Content shall remain the exclusive property of us or our licensors, agents or suppliers, as applicable, unless otherwise expressly agreed by us.

B. Trademarks. All of the trademarks, service marks, trade names and logos (“Marks”) used on the Site belong to us or our affiliates, partners, vendors or licensors. You are prohibited from using the Marks in any way without our prior written consent.

C. Products. Our products may be protected by one or more foreign and/or US patents.

D. Notices. You will not remove any copyright, trademark or other proprietary notices from the Site or Content found on the Site.

IV. Restrictions on Use of Site.

You are prohibited from:

attempting to gain unauthorized access to any other user’s account or any database, computer system or network associated with the Site;

modifying or attempting to modify or in any way tamper with the Site;

transmitting unlawful, harassing, libelous, defamatory, inflammatory, slanderous, profane, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable communications or material of any kind or nature;

transmitting any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, right of privacy or right of publicity;

transmitting any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious programs;

sending unsolicited email or advertisements to any user of the Site;

interfering with another user’s use of the Site; and

transmitting material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law.

We reserve the right in our sole discretion to take any action we feel is necessary to cure or prevent a violation of our Terms of Use, including among other things, terminating your use of the Site and the removal of materials you have posted to the Site.

V. User Submissions.

A. Submissions. You are solely responsible for any comments, suggestions, materials, information, images, audio, video or other material that you send or email to us or post or upload to the Site (each a “Submission” and collectively “Submissions”) and the consequences of posting or publishing them. Please keep in mind, we treat all Submissions as non-confidential.

B. License. By submitting a Submission, you grant to us a worldwide, perpetual, irrevocable, royalty-free, fully transferable, non-exclusive right to copy, distribute, publicly display, exhibit, publicly perform, modify and otherwise exploit your Submission, including to create derivative works from your Submission, in all media and formats whether now known or later developed. Additionally, you grant us the right to use your name and, if provided as part of the Submission, your image, voice and likeness. Without limitation of the foregoing, we will have the unrestricted right to use any ideas, concepts, know-how, or techniques contained in any Submissions for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products using the information from your Submissions. No compensation will be paid with respect to any use of your Submissions. We are under no obligation to display or use any Submission you provide and may remove your Submission from the Site at any time in our sole discretion. If you submit a Submission, you waive and release Company and our officers, directors, agents, subsidiaries, joint ventures and employees from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with your Submission or the exploitation of the Submission or any component thereof by us, including without limitation all claims for theft of ideas or copyright infringement.

C. Prohibited Activities. We do not encourage do not seek Submissions that result from any activity that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; or (iii) may constitute a crime or tort. You agree that you have not and will not engage in any of the foregoing activities in connection with producing your Submission. Without limiting the foregoing, you agree that in conjunctions with your Submission, you will not inflict emotional distress on other people, will not humiliate other people (publicly or otherwise), will not assault or threaten other people, will not enter onto private property without permission, and will not otherwise engage in any activity that may result in injury, death, property damage, and/or liability of any kind. We will have the right to reject any Submission in connection with which we believe, in our sole discretion, that any such activities have occurred. In addition, you are prohibited from submitting material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law, or that violates any of the restrictions set forth in Section IV hereof. You also agree that sending unsolicited email advertisements to any user of the Site is expressly prohibited by these Terms of Use.

D. Violations. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation, including without limitation, the immediate removal of the pertinent materials from this Site. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.

E. No Obligation To Monitor. We do not, nor are we under any obligation to, monitor all user Submissions to the Site. Use of the Site and the message boards, blogs and any similar functions or services are at your own risk.

VI. Your Representations and Warranties.

You represent and warrant that:

You have the right and authority to enter into this agreement (if you are under the age of 18, your parent or legal guardian must agree to these Terms of Use on your behalf);

You have obtained all consents and/or possess all copyright, patent, trademark, trade secret and any other proprietary rights necessary for you to grant the rights granted herein with respect to your

Submissions and for us to exercise such rights without any permission from or payment to any third party;

Each Submission by you and our use of it will not violate, misappropriate or infringe any rights of any third party, including but not limited to any intellectual property rights, privacy rights and rights of publicity; and

You have read, understood, agree with, and will abide by these Terms of Use.

VII. Disclaimers.

A. Not Medical Advice. The Content and Links to other websites and content are solely for informational purposes. They are not intended to be a substitute for professional medical advice, diagnosis, or treatment. If you have any questions regarding urinary incontinence or other medical conditions, you should ask your physician or other qualified health provider. Never disregard professional medical advice or delay in seeking it because of something you have read on the Site or one of the Links to other sites.

B. DISCLAIMER OF WARRANTIES.

YOUR USE AND BROWSING OF THE SITE IS AT YOUR RISK. WE ARE NOT LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO, OR USE OF, OR THE INABILITY TO USE, THE SITE. WITHOUT LIMITING THE FOREGOING, EVERYTHING ON THE SITE IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. WE DO NOT WARRANT THAT THIS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECT WILL BE CORRECTED, OR THAT THE SERVER THAT MAKES IT AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT THE CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION OR MATERIAL ON THIS SITE, OR THE RESULTS OF THE USE OF SUCH INFORMATION OR MATERIALS. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES. WE ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SITE.

Additionally, and without limitation of the foregoing, we make no representations or warranties about, nor do we assume any responsibility for:

the results of the use of the Site or any information on it;

the safety of the Site from viruses, defects or bugs that may be harmful to your computer;

the Links provided on the Site, the products or services offered or sold by third parties who may have advertising on the Site or to which the Site provides a Link, or the information and materials posted on third party sites, even if we have referenced them or provided a Link to such sites;

the acts, omissions or conduct of any user, advertiser or other party on or through the Site, including without limitation the content of any Submission provided by any other user;

any unauthorized access to or use of the Site or personal information or other data on or provided through the Site; and

any injuries of any kind to you or third parties related to use of the Site or its Content.

VIII. Limitation of Liability.

IN NO EVENT WILL WE, OUR LICENSORS, OR ANY THIRD PARTY MENTIONED ON OR INVOLVED IN THE CREATION OR OPERATION OF THE SITE, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE OR ANY LINKS, CONTENT, SUBMISSIONS OR INTERACTIONS WITH OTHER USERS, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

If a court holds the limitation above unenforceable, we, our licensors, and any third parties mentioned on or involved in the creation or operation of the Site shall be liable only to the extent of actual damages incurred by you, up to a maximum of $100 USD in the aggregate. Otherwise, your sole and exclusive remedy shall be to discontinue use of the Site.

IX. Indemnity.

You agree to defend, indemnify and hold us, our respective officers, directors, employees, and agents and our licensors (“Indemnified Parties”) harmless from any and all liabilities, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with:

your use of the Site or the Internet or any other act or omission by you in connection with the Site;

your Submissions;

your violation of any term of these Terms of Use;

your violation of the personal, proprietary or other rights of any third party, including without limitation any intellectual property right (e.g. copyright, trademark, patent, trade secret), right of privacy or right of publicity;

your violation of any law, rule or regulation of the United States or any other country; or

any other party’s access to the Site using your username or password.

You agree not to settle or compromise any claim, except with prior written consent of the relevant Indemnified Parties. You agree to cooperate as fully as is reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

X. Release.

In the event that you have a dispute with one or more other users of the Site, you release us and our officers, directors, agents, subsidiaries, and employees from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

XI. Digital Millennium Copyright Act.

We respect the intellectual property of others and require that you do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), the text of which may be found on the U.S. Copyright Office site at http://www.copyright.gov/legislation/dmca.pdf, We will respond expeditiously to notices of alleged copyright infringement that are duly reported to our designated copyright agent identified in the notice below. If you believe your content has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our designated copyright agent in Section XIV below with the following information:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;

Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;

A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

You acknowledge that if you fail to comply with all of the requirements of this Section 10, your DMCA notice may not be valid.

XII. Linking to this Site.

Creating or maintaining any link from another Site to any page on this Site without our prior written permission is prohibited. Running or displaying this Site or any information or material displayed on this Web Site in frames or through similar means on another Site, including via “in-line” linking, without our prior written permission is prohibited. Any permitted links to this Site must comply will all applicable laws, rule and regulations.

XIII. Governing Law; Forum; Other Terms.

By using the Site, you agree that this Agreement shall be governed by and construed under the laws of the State of New York and in the event that you file a lawsuit pertaining to the Site that the lawsuit will take place in the Federal District Court for the Eastern District of New York. If any provision of this Agreement shall be deemed void or unenforceable, the remainder of the Agreement shall nonetheless be enforceable. Our failure to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. Any provision that was, by its nature, intended to survive termination of these Terms of Use will survive.

XIV. Contact.

If you do not understand these Terms of Use or for information comments or questions about the Site, please contact marketing@prevail.com