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PARTY SITES AND PRODUCTS, OR FOR ANY DAMAGES RELATED TO LOSS OF
REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS
OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER CAUSED BY TORT
(INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF
FORESEEABLE AND EVEN IF PEPSICO, INC. HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, SITE
CONTENT, THE SERVICES OR THIRD PARTY SITES AND PRODUCTS ARE AT YOUR
OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA
RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO
EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PEPSICO ARISING OUT OF
OR IN ANY WAY RELATED TO THIS AGREEMENT, THE ACCESS TO AND USE OF THE
SITE, SITE CONTENT, PEPSI MIC DROP NFTS, OR ANY SERVICES PURCHASED ON
THE SITE EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT YOU HAVE PAID
TO PEPSICO, INC. FOR THE SERVICES IN THE LAST TWELVE MONTHS OUT OF
WHICH LIABILITY AROSE.
15.
Indemnification
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold
harmless PepsiCo, Inc., and our respective past, present and future employees, officers,
directors, contractors, consultants, equity holders, suppliers, vendors, service providers,
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parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors
and assigns (individually and collectively, the “PepsiCo Parties”), from and against all actual
or alleged third party claims, damages, awards, judgments, losses, liabilities, obligations,
penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and
expenses) and costs (including, without limitation, court costs, costs of settlement and costs
of pursuing indemnification and insurance), of every kind and nature whatsoever, whether
known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or
unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”),
including, but not limited to, damages to property or personal injury, that are caused by, arise
out of or are related to (a) your use or misuse of the Site, Site Content, or Pepsi Mic Drop
NFTs, (c) your violation of these Terms, (c) your violation of the rights of a third party,
including another user and (e) your failure to pay any Taxes or Sales Taxes in connection
with your transactions on this Site or in connection with any transaction you effect in a Pepsi
Mic Drop NFT, or to provide us with a properly executed tax form described in Section 8. You
agree to promptly notify us of any third party Claims and cooperate with the PepsiCo Parties
in defending such Claims. You further agree that the PepsiCo Parties shall have control of
the defense or settlement of any third party Claims. THIS INDEMNITY IS IN ADDITION TO,
AND NOT IN LIEU OF, ANY OTHER INDEMNITIES SET FORTH IN A WRITTEN
AGREEMENT BETWEEN YOU AND US.
16.
Governing Law
These Terms of Use, your rights and obligations, and all actions contemplated by, arising out
of or related to these Terms shall be governed by the laws of the State of New York, as if
these Terms are a contract wholly entered into and wholly performed within the State of New
York. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THIS SITE AS
CONTEMPLATED BY THESE TERMS SHALL BE DEEMED TO HAVE OCCURRED IN THE
STATE OF NEW YORK AND BE SUBJECT TO THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
17.
Disputes and Arbitration Agreement
Carefully read the following arbitration agreement ("Arbitration Agreement"). It requires you
to arbitrate disputes with PepsiCo, Inc. and limits the manner in which you can seek relief
from us.
Applicability of Arbitration Agreement
. You agree that any dispute or claim relating in any
way to your access or use of the Site, to any Services sold or distributed through the Site,
including Pepsi Mic Drop NFTs, or to any aspect of your relationship with PepsiCo, Inc. will
be resolved by binding arbitration, rather than in court, except that (1) you may assert claims
in small claims court if your claims qualify; and (2) you or PepsiCo may seek equitable relief
in court for infringement or other misuse of intellectual property rights (such as trademarks,
trade dress, domain names, trade secrets, copyrights, and patents).
Arbitration Rules and Forum
. The Federal Arbitration Act governs the interpretation and
enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must
send a letter requesting arbitration and describing your claim to our registered agent
Corporation Service Company, 251 Little Falls Drive, Wilmington Delaware 19808. The
arbitration will be conducted by JAMS, an established alternative dispute resolution provider.
Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees
and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration
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Rules and procedures available at
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