Last Updated: December 15, 2022
Thank you for visiting our website, mobile application, marketplace or online store (“Platform”) that from time to time provides users with the opportunity to acquire unique PepsiCo, Inc. non-fungible tokens (“Pepsi Mic Drop NFTs”) associated with digital collectibles containing exclusive content from PepsiCo, Inc. and/or its subsidiaries (“Company,” “Pepsi,” “PepsiCo,” “we,” or “us”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE PLATFORM. THESE TERMS GOVERN YOUR USE OF THE PLATFORM AND ACQUISITION, TRADING AND DISPLAY OF PEPSI MIC DROP NFTS, UNLESS WE HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT OR PROVIDED SPECIFIC TERMS WITH YOU FOR THAT PURPOSE. THE PLATFORM IS ONLY AVAILABLE TO YOU IF YOU ACCEPT ALL OF THESE TERMS.
IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO ACCEPT THESE TERMS ON THAT ENTITY’S BEHALF, IN WHICH CASE “YOU” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THESE TERMS, THEN WE ARE UNABLE TO MAKE THE PLATFORM AVAILABLE TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM.
BY ENTERING, ACCESSING, BROWSING, SUBMITTING INFORMATION TO, OR OTHERWISE USING THE PLATFORM OR ANY PART OF IT, OR BY CLICKING “I ACCEPT” BELOW OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX OR IN ANOTHER MANNER, YOU ARE CONFIRMING THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU ARE EIGHTEEN (18) YEARS OLD OR OLDER.
NOTE THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION. PLEASE REVIEW THE ARBITRATION PROVISION CAREFULLY, SINCE IT AFFECTS YOUR RIGHTS. BY USING THE PLATFORM OR ANY PART OF IT, OR BY CLICKING “I ACCEPT” BELOW OR INDICATING YOUR ACCEPTANCE IN AN ADJOINING BOX OR IN ANOTHER MANNER, YOU UNDERSTAND AND AGREE TO BE BOUND BY THE ARBITRATION PROVISION.
ANY ACQUISITION, PURCHASE OR SALE YOU MAKE, ACCEPT OR FACILITATE OUTSIDE OF THIS PLATFORM OF PEPSI MIC DROP NFTS WILL BE ENTIRELY AT YOUR RISK. WE DO NOT CONTROL OR ENDORSE PURCHASES OR SALES OF PEPSI MIC DROP NFTS OUTSIDE OF THIS PLATFORM. WE EXPRESSLY DENY ANY OBLIGATION TO INDEMNIFY YOU OR HOLD YOU HARMLESS FOR ANY LOSSES YOU MAY INCUR BY TRANSACTING, OR FACILITATING TRANSACTIONS, IN PEPSI MIC DROP NFTS OUTSIDE OF THIS PLATFORM.
COMPANY RESERVES THE RIGHT TO REFUSE TO PROVIDE SERVICES TO OR RESTRICT ACCESS TO THE PLATFORM TO ANY USER. COMPANY DOES NOT HAVE AN OBLIGATION TO SELL ANY OF ITS PRODUCTS TO ANY USER.
IF YOU DO NOT AGREE TO THESE TERMS OR YOU ARE YOUNGER THAN EIGHTEEN (18) YEARS OLD, YOU DO NOT HAVE PERMISSION TO USE THIS PLATFORM.
COMPANY RESERVES THE RIGHT TO CHANGE OR MODIFY THESE TERMS AT ANY TIME IN ITS SOLE DISCRETION. YOU AGREE AND UNDERSTAND THAT BY ACCESSING OR USING THE PLATFORM FOLLOWING ANY CHANGE TO THESE TERMS, YOU ARE AGREEING TO THE REVISED TERMS AND ALL OF THE TERMS INCORPORATED THEREIN BY REFERENCE.
1. Use of the Platform and Security
(i) Account and Wallet Set-Up. You will need to use an electronic wallet which will enable you to store and access Pepsi Mic Drop NFTs that you collect or purchase via the Platform. Pepsi Mic Drop NFTs are stored on a blockchain network (the “Network”). As such, the Company does not maintain the Pepsi Mic Drop NFTs on this Platform and, aside from adding the NFT minter’s wallet address to the applicable smart contract for the Pepsi Mic Drop NFTs, the Company has no control over the generation, minting, transfer, storage, ownership or maintenance of the Pepsi Mic Drop NFT.
(ii) Account Registration. To the extent enabled or required by the Platform, you must provide accurate and complete registration information when you create an account for the Platform. By creating an account, you agree, represent and warrant to provide accurate, current and complete account information about yourself, and to maintain and promptly update your account information as necessary. We reserve the right to reclaim usernames without liability to you.
(iii) Account Security. You are responsible for the security of your account for the Platform and for your electronic wallets. Any unauthorized access to your wallet by third parties could result in the loss or theft of an Acquired NFT (as defined below) and/or other digital assets held in your wallet and any associated wallets, including any linked financial information such as bank account(s) or credit card(s). PepsiCo is not responsible for managing and maintaining the security of your wallet nor for any unauthorized access to or use of your cryptocurrency wallet. If you become aware of any unauthorized use of your password or of your account with us, you agree to notify us immediately at? https://contact.pepsico.com/pepsi/contact-us.
(iv) Account Permissions. You may never use another user’s account without express permission.
2. Payment, Gas Fees, and Taxes
(i) Cryptocurrency Financial Transactions on Platform. To the extent offered on the Platform, any cryptocurrency payments or financial transactions that you engage in via the Platform will be conducted solely through the Network. We have no control over these payments or transactions, nor do we have the ability to reverse any payments or transactions. We do not provide refunds for any purchases that you might make on or through the Platform – whether Pepsi Mic Drop NFTs or anything else. Whether a particular cryptocurrency is accepted as a payment method by Company is subject to change at any time in Company’s sole discretion.
(ii) Fiat Currency Financial Transactions on Platform. To the extent offered on the Platform, any fiat currency payments via credit cards or other means will be directed to our unaffiliated third-party payment processor. All bank, credit card, or other payment information is sent directly to and stored with the payment processor using its security protocols. Company does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. Company may add or change any payment processing services at any time. Such services may be subject to additional terms or conditions including their privacy policies.
(iii) No liability for Financial Transactions. We have no liability to you or to any third party for any claims or damages that may arise as a result of any payments or transaction that you engage in via the Platform, or any other payment or transactions that you conduct via the Network.
(iv) Gas Fees. Certain transactions on the Network may require the payment of a transaction fee (each, a “Gas Fee”). The Gas Fees fund the network of computers that run the decentralized Network. This means that you may need to pay a Gas Fee for each transaction that you instigate via the Platform on top of the NFT purchase price (if any). Except as otherwise expressly set forth in these Terms, or except as indicated by Company based on the manner in which it makes Pepsi Mic Drop NFTs available, you will be solely responsible to pay any Gas Fee for any transaction that you instigate via the Platform. To the extent you elect to acquire a Pepsi Mic Drop NFT on a third-party platform, a Gas Fee may be applicable to such transaction and you agree that Company shall have no liability with respect to such Gas Fee.
(v) Responsibility for Taxes. You acknowledge that you are solely responsible for determining and paying to the applicable taxing authority all applicable taxes (“Taxes”), including U.S. federal and applicable state and local taxes, that you may owe as the result of the receipt, minting or any other activity with respect to Pepsi Mic Drop NFTs. You represent that you are an individual who is a United States person for U.S. federal income tax purposes (generally, a U.S. citizen or resident alien) and that you reside at an address in a State within the United States. You agree, promptly upon our request, to provide to us a properly executed Internal Revenue Service Form W-9, or any other tax form that we determine is required in order for us to comply with applicable tax reporting obligations, as a condition of the receipt and minting of Pepsi Mic Drop NFTs.
(vi) Responsibility for Payment. Without limiting the generality of the foregoing, and only to the extent applicable, you agree and understand that you will be unable to mint a Pepsi Mic Drop NFT unless you agree to pay, and do pay, all associated Network gas fees required for the transaction, and that we bear no responsibility for paying any such fees on your behalf. In addition, you understand and agree that we will not be minting any Pepsi Mic Drop NFTs on your behalf or transferring any Pepsi Mic Drop NFTs to you, and that, subject to your payment of all applicable gas fees (if any), the Pepsi Mic Drop NFTs will be minted by you and deposited directly into your cryptocurrency wallet upon generation. No refunds are permitted except with respect to any statutory warranties or guarantees that cannot be excluded or limited by law.
3. Ownership, License, and Ownership Restrictions
YOUR OWNERSHIP OF PEPSI MIC DROP NFTS WILL ONLY BE RECOGNIZED BY US IF YOU HAVE PURCHASED OR OTHERWISE RIGHTFULLY ACQUIRED SUCH PEPSI MIC DROP NFTS FROM A LEGITIMATE SOURCE AND NOT THROUGH ANY OF THE CATEGORY B PROHIBITED ACTIVITIES (AS DEFINED BELOW).
For the purposes of this Section 3, the following capitalized terms will have the following meanings:
“Art” means any art, design, and drawings (in any form or media, including, without limitation, video or photographs) that may be associated with a Pepsi Mic Drop NFTs that you Own.
“Own” means, with respect to a Pepsi Mic Drop NFT, a Pepsi Mic Drop NFT that you have purchased or otherwise rightfully acquired from a legitimate source (and not through any of the Category B Prohibited Activities (as defined below)), where proof of such purchase is recorded on the Network.
“Acquired NFT” means a Pepsi Mic Drop NFT that you Own.
“Third Party IP” means any third party patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how or any other intellectual property rights recognized in any country or jurisdiction in the world.
(i) Ownership of NFT. When you acquire a Pepsi Mic Drop NFT in accordance with these Terms (and not through any of the Category B Prohibited Activities), you own the Pepsi Mic Drop NFT completely. This means that, with the exception described in Section 2, you have the right to swap your Pepsi Mic Drop NFT, sell it, or give it away. Ownership of the Pepsi Mic Drop NFT is mediated entirely by the Network. Except as otherwise permitted by these Terms in cases where we determine that the Pepsi Mic Drop NFT has not been rightfully acquired from a legitimate source (including, without limitation, through any of the Category B Prohibited Activities), at no point will we seize, freeze, or otherwise modify the ownership of any Pepsi Mic Drop NFT.
(ii) We Own the Platform. You acknowledge and agree that we (or, as applicable, our licensors) own all legal right, title and interest in and to all other elements of the Platform, and all intellectual property rights therein (including, without limitation, all Art, designs, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the Platform (collectively, the “Platform Materials”)). You acknowledge that the Platform Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws. All Platform Materials are the copyrighted property of us or our licensors, and all trademarks, service marks, and trade names associated with the Platform or otherwise contained in the Platform Materials are proprietary to us or our licensors.
(iii) No User License or Ownership of Platform Materials. Except as expressly set forth herein, your use of the Platform does not grant you ownership of or any other rights with respect to any content, code, data, or other Platform Materials that you may access on or through the Platform. We reserve all rights in and to the Platform Materials that are not expressly granted to you in these Terms.
(iv) Further User Ownership Acknowledgements. For the sake of clarity, you understand and agree: (a) that your purchase of a Pepsi Mic Drop NFT, whether via the Platform or otherwise, does not give you any rights or licenses in or to the Platform Materials (including, without limitation, our copyright in and to the associated Art) other than those expressly contained in Section 3(v) of these Terms; (b) that you do not have the right to reproduce, distribute, or otherwise commercialize any elements of the Platform Materials (including, without limitation, any Art) without our prior written consent in each case, which consent we may withhold in our sole and absolute discretion; and (c) that you will not apply for, register, or otherwise use or attempt to use any of our trademarks or service marks, or any confusingly similar marks, anywhere in the world without our prior written consent in each case, which consent we may withhold at our sole and absolute discretion. All rights in and to the Art not expressly provided for in these Terms, or in the applicable terms or license provided when minting a Pepsi Mic Drop NFT are hereby reserved for Company. Company Owns and will retain all title, interest, ownership rights, intellectual property, and other proprietary rights in and to the Art.
(v) User License to Art. Subject to any specific terms and conditions provided by Company (if any) governing the sale of any individual Pepsi Mic Drop NFT, and subject to your continued compliance with these Terms and continued ownership of the Acquired NFT, we grant you a non-exclusive, non-transferable (except in connection with an ownership transfer of the Acquired NFT) license under Company’s rights in the Art, solely in the territories where Company has such rights, to use and display the Art associated with your Acquired NFTs, solely for your own personal, non-commercial use. For the avoidance of doubt, to the extent that you are permitted to sell, swap, donate, give away, transfer, or otherwise dispose of Acquired NFTs, royalties may apply. Please refer to the specific terms and conditions that govern the sale of individual Pepsi Mic Drop NFTs as offered on the Platform. Your license to the Art will immediately terminate if you convey or otherwise relinquish your Acquired NFT for any reason. For avoidance of doubt, nothing in these Terms grants you the right to use any of Company’s trademarks. No trademark or other rights based on designation of source or original are licensed to you.
(vi) Restrictions on Ownership. For the avoidance of doubt, your license to Art under this agreement does not permit you or any third party to do or attempt to do any of the foregoing without our (and, as applicable, our licensors’) express prior written consent in each case: (a) modify the Art for your Acquired NFT in any way, including, without limitation, the shapes, designs, drawings, attributes, or color schemes; (b) use the Art for your Acquired NFT to advertise, market, or sell any third party product or service; (c); use the Art for your Acquired NFT in movies, videos, or any other forms of media, except to the limited extent that such use is expressly permitted in these Terms or solely for your own personal, non-commercial use; (d) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Art for your Acquired NFT; (e) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Art for your Acquired NFT; or (f) otherwise utilize the Art for your Acquired NFT for your or any third party’s commercial benefit.
(vii) Third Party IP. If the Art associated with your Acquired NFT contains Third Party IP, you understand and agree as follows: (a) that you will not have the right to use such Third Party IP in any way except as incorporated in the Art, and subject to the license and restrictions contained herein; (b) that, depending on the nature of the license granted from the owner of the Third Party IP, we may need to (and reserve every right to) pass through additional restrictions on your ability to use the Art; and (c) to the extent that we inform you of such additional restrictions in writing, you will be responsible for complying with all such restrictions from the date that you receive the notice, and that failure to do so will be deemed a breach of the license contained in this Section 3.
(viii) Disassociation of Acquired NFT and Art. You specifically acknowledge and agree that your ownership of the Acquired NFT does not grant you any right, title, or interest in or to the Art except as expressly set forth herein, and that Company may remove or terminate access to the Art that is made accessible by the Acquired NFT if Company determines in good faith that the Art may be defamatory, violate applicable law, or infringe the intellectual property or other rights of a third party.
(ix) Other Terms of License. The license granted in Section 3(v) above applies only to the extent that you continue to Own the applicable Acquired NFT. If at any time you sell, swap, donate, give away, transfer, or otherwise dispose of your Acquired NFT for any reason, the license granted in Section 3(v) will immediately transfer to the new owner of the Acquired NFT and your own license will immediately expire with respect to that Pepsi Mic Drop NFT without the requirement of notice, and you will have no further rights in or to the Art for that Pepsi Mic Drop NFT. The restrictions in this Section 3 will survive the expiration or termination of these Terms.
(xi) Secondary Buyers.
You may be able to sell, transfer, trade and transact your Acquired NFT on a third party marketplace. You acknowledge and agree that Platform may implement a transaction fee on any secondary sale of the Acquired NFT, and such transaction fees may be incorporated into the smart contract for such Acquired NFT. If you sell, transfer, trade and/or transact your Acquired NFT, you agree to cause any subsequent owner of the Pepsi Mic Drop NFT to agree to these terms as part of the applicable disposition of the Acquired NFT.
4. Conditions of Use and Prohibited Activities
YOU AGREE THAT YOU ARE RESPONSIBLE FOR YOUR OWN CONDUCT WHILE ACCESSING OR USING THE PLATFORM, AND FOR ANY CONSEQUENCES THEREOF. YOU AGREE TO USE THE PLATFORM ONLY FOR PURPOSES THAT ARE LEGAL, PROPER AND IN ACCORDANCE WITH THESE TERMS AND ANY APPLICABLE LAWS OR REGULATIONS.
(i) User Warranties. Without limiting the foregoing, you warrant and agree that your use of the Platform will not (and will not allow any third party to):
(a) in any manner:
(1) involve the sending, uploading, distributing or disseminating any unlawful, defamatory, harassing, abusive, fraudulent, obscene, or otherwise objectionable content;
(2) involve the distribution of any viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature;
(3) involve the uploading, posting, transmitting or otherwise making available through the Platform any content that infringes the intellectual proprietary rights of any party;
(4) involve using the Platform to violate the legal rights (such as rights of privacy and publicity) of others;
(5) involve engaging in, promoting, or encouraging illegal activity (including, without limitation, money laundering, terrorist financing, or engaging in business with individuals subject to sanctions);
(6) involve interfering with other users’ enjoyment of the Platform;
(7) involve exploiting the Platform for any unauthorized commercial purpose;
(8) involve modifying, adapting, translating, or reverse engineering any portion of the Platform;
(9) involve removing any copyright, trademark or other proprietary rights notices contained in or on the Platform or any part of it;
(10) involve reformatting or framing any portion of the Platform;
(11) involve displaying any content on the Platform that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;
(12) involve using any spider, site search/retrieval application, or other device to retrieve or index any portion of the Platform or the content posted on the Platform, or to collect information about its users for any unauthorized purpose;
(13) involve accessing or using the Platform for the purpose of creating a product or service that is competitive with any of our products or services;
(14) involve abusing, harassing, or threatening another user of the Platform or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers (including, without limitation, filing support tickets with false information, sending excessive emails or support tickets, obstructing our employees from doing their jobs, refusing to follow the instructions of our employees, or publicly disparaging us by implying favoritism by our employees or otherwise); or
(15) involve promotion of drinking and driving or irresponsible consumption of alcohol, disparages competitive products, is unlawful, using any abusive, defamatory, ethnically or racially offensive, harassing, harmful, hateful, obscene, offensive, sexually explicit, threatening or vulgar language, when uploading or posting, communicating with another user of the Platform or any of our authorized representatives, customer service personnel, chat board moderators, or volunteers
(each, a “Category A Prohibited Activity”); and/or
(b) in any manner:
(1) involve creating user accounts by automated means or under false or fraudulent pretenses;
(2) involve the impersonation of another person (via the use of an email address or otherwise);
(3) involve using, employing, operating, or creating a computer program to simulate the human behavior of a user (“Bots”);
(4) involve using, employing, or operating Bots or other similar forms of automation to engage in any activity or transaction on the Platform (including, without limitation, purchases of Pepsi Mic Drop NFTs on the Marketplace);
(5) involve acquiring Pepsi Mic Drop NFTs through inappropriate or illegal means (including, among other things, using a stolen credit card, or a payment mechanism that you do not have the right to use, or purchasing a Pepsi Mic Drop NFT and then attempting to charge the cost back to your payment method while still maintaining ownership or control of the Pepsi Mic Drop NFT or selling, gifting or trading the Pepsi Mic Drop NFT to someone else); or
(6) involve the purchasing, selling or facilitating the purchase and sale of any user’s account(s) to other users or third parties for cash or cryptocurrency consideration outside of the Platform; or
(7) otherwise involve or result in the wrongful seizure or receipt of any Pepsi Mic Drop NFT or other digital assets
(each, a “Category B Prohibited Activity” and, together with Category A Prohibited Activity, the “Prohibited Activities”).
(ii) Effect of Your Breaches. If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your access to the Platform and/or terminate your license to the Art. You agree, upon Company’s request, to return the Acquired NFT to Company.
NOTWITHSTANDING THE FOREGOING, HOWEVER, IF WE REASONABLY BELIEVE THAT YOU ARE ENGAGED IN ANY OF THE CATEGORY B PROHIBITED ACTIVITIES, (A) IN ADDITION TO OUR RIGHT TO IMMEDIATELY SUSPEND OR TERMINATE YOUR ACCESS TO THE PLATFORM AND/OR TERMINATE YOUR LICENSE TO THE ART, WE ALSO RESERVE THE RIGHT, AT OUR SOLE AND ABSOLUTE DISCRETION, WITHOUT NOTICE OR LIABILITY TO YOU, TO DEEM ANY TRANSACTION THAT TOOK PLACE VIA OR AS THE RESULT OF SUCH ACTIVITIES TO BE VOID AB INITIO, AND (B) YOU AGREE, UPON COMPANY’S REQUEST, TO RETURN THE ACQUIRED NFT TO COMPANY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE PLATFORM IS AT YOUR SOLE RISK, AND THAT THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW COMPANY AND LICENSORS MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE PLATFORM AND ANY PART OF IT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (I) YOUR ACCESS TO OR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS; (II) YOUR ACCESS TO OR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (III) USAGE DATA PROVIDED THROUGH THE PLATFORM WILL BE ACCURATE; (IV) THE PLATFORM OR ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE ON OR THROUGH THE PLATFORM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (V) THAT ANY DATA THAT YOU DISCLOSE WHEN YOU USE THE PLATFORM WILL BE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, AND AGREE THAT COMPANY HAS NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY UNLESS IT IS DUE TO OUR GROSS NEGLIGENCE.
COMPANY WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF THE NETWORK, OR YOUR ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (I) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (II) SERVER FAILURE OR DATA LOSS; (III) CORRUPTED WALLET FILES; OR (IV) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE PLATFORM, THE NETWORK, OR ANY ELECTRONIC WALLET.
PEPSI MIC DROP NFTS ARE INTANGIBLE DIGITAL ASSETS THAT EXIST ONLY BY VIRTUE OF THE OWNERSHIP RECORD MAINTAINED IN THE NETWORK. ALL SMART CONTRACTS ARE CONDUCTED AND OCCUR ON THE DECENTRALIZED LEDGER WITHIN THE NETWORK. WE HAVE NO CONTROL OVER AND MAKE NO GUARANTEES OR PROMISES WITH RESPECT TO SMART CONTRACTS.
COMPANY IS NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF THE NETWORK, OR ANY ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
7. Warranties, Limitation of Liability, Indemnification
LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT COMPANY AND LICENSORS WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES WHICH YOU MAY INCUR, HOWSOEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOSS OF GOODWILL OR BUSINESS REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DIMINUTION OF VALUE OR ANY OTHER INTANGIBLE LOSS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT COMPANY’S TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR YOUR INABILITY TO ACCESS OR USE) ANY PORTION OF THE PLATFORM, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF (A) $100 OR (B) THE AMOUNTS YOU HAVE ACTUALLY AND LAWFULLY PAID US UNDER THESE TERMS IN THE TWO (2) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE MADE THE PLATFORM AVAILABLE TO YOU AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE REPRESENTATIONS AND WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, WHICH REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN COMPANY AND YOU AND FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. WE WOULD NOT BE ABLE TO PROVIDE THE PLATFORM TO YOU WITHOUT THESE LIMITATIONS.
ASSUMPTION OF RISK
(i) Value and Volatility. The prices of Pepsi Mic Drop NFTs can be extremely volatile and subjective, and Pepsi Mic Drop NFTs have no inherent or intrinsic value. Fluctuations in the price of other digital assets could materially and adversely affect the value of your Pepsi Mic Drop NFT, which may also be subject to significant price volatility. Each Pepsi Mic Drop NFT has no inherent or intrinsic value. We cannot guarantee that any Pepsi Mic Drop NFT purchased will retain its original value, as the value of Pepsi Mic Drop NFTs is inherently subjective and factors occurring outside of the Platform ecosystem may materially impact the value and desirability of any particular Pepsi Mic Drop NFT. Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of Pepsi Mic Drop NFTs. Pepsi Mic Drop NFTs are not legal tender and are not backed by any government. Transactions in Pepsi Mic Drop NFTs may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable. Some transactions in Pepsi Mic Drop NFTs shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that you initiated the transaction. The value of Pepsi Mic Drop NFTs may be derived from the continued willingness of market participants to exchange fiat currency or digital assets for Pepsi Mic Drop NFTs, which may result in the potential for permanent and total loss of value of a particular Pepsi Mic Drop NFT should the market for that Pepsi Mic Drop NFT disappear.
You agree and understand that you are solely responsible for determining the nature, potential value, suitability, and appropriateness of these risks for yourself, and that we do not give advice or recommendations regarding Pepsi Mic Drop NFTs, including the suitability and appropriateness of, and investment strategies for, and tax consequences of, Pepsi Mic Drop NFTs. You agree and understand that you access and use this Site at your own risk; however, this brief statement does not disclose all of the risks associated with Pepsi Mic Drop NFTs and other digital assets.
(ii) Tax Calculations. You are solely responsible for determining what, if any, taxes apply to your NFT-related transactions. We are not responsible for determining the taxes that apply to your transactions on the Platform.
(iii) Use of Blockchain. The Platform does not store, send, or receive Pepsi Mic Drop NFTs. This is because Pepsi Mic Drop NFTs exist only by virtue of the ownership record maintained on the Platform’s supporting blockchain in the Network. Any transfer of Pepsi Mic Drop NFTs occurs within the supporting blockchain in the Network, and not on the Platform.
(iv) Inherent Risks with Digital Assets. There are risks associated with using Internet-based digital assets such as Pepsi Mic Drop NFTs and cryptocurrency, including, but not limited to, the risk of hardware, software and Internet connections, the risk of malicious software introduction, and the risk that third parties may obtain unauthorized access to information stored within your electronic wallet. You accept and acknowledge that we will not be responsible for any communication failures, disruptions, errors, distortions or delays you may experience when using the Network, however caused.
(v) Regulatory Uncertainty. The regulatory regime governing blockchain technologies, cryptocurrencies and tokens is uncertain, and new regulations or policies may materially adversely affect the development of the Company Platform ecosystem, and therefore the potential utility or value of your Pepsi Mic Drop NFTs.
(vi) Software Risks. Upgrades to the Network, a hard fork in the Network, or a change in how transactions are confirmed on the Network may have unintended, adverse effects on all blockchains using the Network’s NFT standard, including the Company Platform ecosystem.
(vii) Securities Risks. Pepsi Mic Drop NFTs are not securities or financial instruments and are not offered for investment purposes.
To the fullest extent permitted by applicable law, you agree to hold harmless and indemnify PepsiCo, Inc., and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, 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 Platform, Platform Materials, or Pepsi Mic Drop NFTs, (b) your violation of these Terms, (c) your violation of the rights of a third party, including another user and (d) your failure to pay any Taxes or Sales Taxes in connection with your transactions on this Platform 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 herein. 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.
8. Digital Millennium Copyright Act
Company is committed to respecting and protecting the legal rights of copyright owners. As such, Company adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the content infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to Company’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:
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;
Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access 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;
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, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Company’s Copyright Agent to receive DMCA Takedown Notices is: email: email@example.com. Address: PepsiCo, Inc. Law Department, 700 Anderson Hill Road
Purchase, NY 10577.
For clarity, only DMCA Takedown Notices should go to the Copyright Agent; any other feedback, comments, online purchases or other communications should be directed to the applicable customer service links posted on the Platform. You acknowledge that in order for Company to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this section.
Once you provide us with an adequate notice as described above, we will respond expeditiously and take whatever action, in our sole discretion, that is deemed appropriate including removal of the disputed copyrighted work from the Platform.
If you believe that a DMCA notice of copyright infringement has been improperly submitted against you, you may submit a counter-notice to the Designated Agent with the following information required by the DMCA:
Your physical or electronic signature;
Identification of the copyrighted work that has been removed or to which access has been disabled including a link to the page on the Platform that contained the material before it was removed or disabled;
A statement under penalty of perjury that you have a good faith belief that the copyrighted work was removed or disabled as a result of mistake or misidentification;
Your name, address, e-mail address, and telephone number; and
A statement that you (i) consent to the jurisdiction of the Federal District Court in the judicial district where your address is located if the address is in the United States, or the United District Court for the Southern District of New York (Manhattan) if your address is located outside of the United States, and (ii) accept service of process from the person who provided the DMCA notice of the alleged copyright infringement.
Please submit your counter-notice to the Copyright Agent at: email: firstname.lastname@example.org. Address: PepsiCo, Inc. Law Department, 700 Anderson Hill Road, Purchase, NY 10577.
In the event that the Company receives a counter-notice in compliance with the above requirements, we will provide the person who submitted the DMCA copyright infringement notice with a copy of the counter-notice, informing them that the Company will replace the removed material in 10 business days from the date of the counter-notice unless the Company first receives notice from the person who submitted the DMCA copyright infringement notice that they have filed an action seeking a court order to restrain the allegedly infringing activity.
PLEASE NOTE THAT PEPSICO INTENDS TO COMPLY WITH ALL PROVISIONS OF THE DIGITAL MILLENNIUM COPYRIGHT ACT, BUT WILL NOT UNILATERALLY TAKE RESPONSIBILITY FOR POLICING AND REMOVING MATERIAL THOUGHT TO BE INFRINGING.
9. No Framing; Links Third Party Sites
Framing, in-line linking or other methods of association with the Platform are expressly prohibited without prior written approval from Company.
10. Ability to Accept Terms
You affirm that you are more than eighteen (18) years of age, or otherwise of legal drinking age in your country of residence, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms, and to abide by and comply with the Terms.
The Terms, and any rights and licenses granted hereunder, except for the above-granted license to the Art (which shall automatically transfer to a new owner of a Acquired NFT in the event of sale, swapping, selling, or giving away, of the Acquired NFT), may not be transferred or assigned by you, but may be assigned by Company without restriction.
From time to time, we may revise these Terms. To help you stay current of any changes, Company may take one or more of the following steps: (1) Company notes the date the Terms was last updated above, and (2) when Company makes a material change to the Terms, we may post conspicuous announcements of such changes on the Platform next to the link to these Terms. Your use of the Platform following the posting of any revised Terms shall be deemed acceptance of the revised Terms. Company strongly recommends checking the Terms periodically. If we are required by law to obtain your express consent for any changes to the Terms, then we will make a commercially reasonable attempt to obtain your consent before implementing such revisions.
13. Changes to the Platform
Company is constantly innovating the Platform to help provide the best possible experience. You acknowledge and agree that the form and nature of the Platform, and any part of it, may change from time to time without prior notice to you, and that we may add new features and change any part of the Platform at any time without notice.
14. Binding Arbitration
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 Platform, to any Services sold or distributed through the Platform, 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 Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, PepsiCo will pay them for you. You may choose to have the arbitration conducted by telephone or video conference or based on written submissions, or you may request to meet in-person for arbitration in New York City, New York. You agree that any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and PepsiCo. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. And you agree that to the extent monetary or non-monetary remedy or relief is granted, such a request for relief may be enforced as needed by any court of competent jurisdiction.
Waiver of Jury Trial. YOU AND PEPSICO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and PepsiCo are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as otherwise indicated in this Section. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A OR COLLECTIVE CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any part of this subsection’s limitations as to a given claim for relief, then that claim must be severed from the arbitration and brought in the state or federal courts located in the State of New York. All other claims shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: PepsiCo, Inc., 700 Anderson Hill Road, Purchase, NY 10577, Attention Legal Department, within 30 days after first becoming subject to this Arbitration Agreement. You may also submit your decision to email@example.com. Your notice must include your name and address, the cryptocurrency wallet address you used to transact on this Platform (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Except as provided herein, if any part or parts of these Terms, including the arbitration agreement in Section 14, are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of these Terms, including the arbitration agreement in Section 14, shall continue in full force and effect.
Company’s failure to enforce any provision of the Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
16. Force Majeure
(i) Force Majeure Events. Company will not be liable or responsible to the you, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms, when and to the extent such failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, pandemics, including the 2019 novel coronavirus pandemic (COVID-19), tsunami, explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this agreement; (f) strikes, labor stoppages or slowdowns or other industrial disturbances; (g) shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity; and (h) other similar events beyond our control.
(ii) Performance During Force Majeure Events. If we suffer a Force Majeure Event, Company will use reasonable efforts to promptly notify you of the Force Majeure Event, stating the period of time the occurrence is expected to continue. We will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. We will resume the performance of our obligations as soon as reasonably practicable after the removal of the cause. In the event that our failure or delay remains uncured for a period of forty-five (45) consecutive days following written notice given by us under this Section, we may thereafter terminate these Terms upon fifteen (15) days’ written notice.
(i) You Terminate. You may terminate these Terms at any time by and discontinuing your access to and use of the Platform. If you terminate these Terms, you will not receive any refunds for any purchases that you might make on or through the Platform – whether for Pepsi Mic Drop NFTs or anything else.
(ii) Company Terminates. You agree that we, in our sole discretion and for any or no reason, may terminate these Terms and suspend and/or terminate your access to the Platform without the provision of prior notice. You agree that any suspension or termination of your access to the Platform may be without prior notice, and that we will not be liable to you or to any third party for any such suspension or termination.
(iii) Other Remedies Available. If Company terminates these Terms or suspend or terminate your access to or use of the Platform due to your breach of these Terms or any suspected fraudulent, abusive, or illegal activity (including, without limitation, if you engage in any of the Prohibited Activities), then termination of these Terms will be in addition to any other remedies we may have at law or in equity.
(iv) Referral to Governmental Authority. Company has the right, without provision of prior notice, to take appropriate legal action, including, without limitation, referral to law enforcement or regulatory authority, or notifying the harmed party of any illegal or unauthorized use of the Platform. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Platform.
(v) Effect of Termination. Upon any termination or expiration of these Terms, whether by you or us, you may no longer have access to information that you have posted on the Platform, and you acknowledge that we will have no obligation to maintain any such information in our databases or to forward any such information to you or to any third party. Sections 1 through 18 will survive the termination or expiration of these Terms for any reason, except that the license to the Art granted to you under Section 3 shall immediately terminate.
YOU WAIVE AND HOLD US AND OUR PARENT, SUBSIDIARIES, AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, AND SUCCESSORS HARMLESS FROM ANY AND ALL CLAIMS RESULTING FROM ANY ACTION TAKEN BY US AND ANY OF THE FOREGOING PARTIES RELATING TO ANY INVESTIGATIONS BY EITHER US OR SUCH PARTIES OR BY LAW ENFORCEMENT AUTHORITIES.
18. Governing Law
All matters arising out of or relating to these Terms will be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
Subject to Section 14 of these Terms, any legal action or proceeding arising under these Terms will be brought exclusively in the courts of the State of New York and the United States District Court located in the Borough of Manhattan in the City of New York, and we and you irrevocably consent and attorn to the personal jurisdiction and venue there. If you have any questions or comments regarding these Terms, contact us at https://contact.pepsico.com/pepsi/contact-us.
©2022, PepsiCo, Inc.