Enactment Date 9/2018
This Agreement (the “Agreement”) is between you (hereinafter “you” or “Customer”) and Nintendo Co., Ltd. (“Nintendo," “we,” “us,” or “our”) and applies to your use of the software application, including the Content (the “Application”).
This Agreement includes the Terms and Conditions below, together with the Additional Terms. Please read all of these terms carefully before accepting this Agreement and using the Application.
If you do not agree to this Agreement, do not install or use the Application.
You must be at least 13 years or older to use the Application. If you are 13 years or older but under the age of 18 (or the age of majority where you live), you must get your parent or legal guardian to accept this Agreement.
NOTE: TO THE FULLEST EXTENT PERMITTED BY LAW, THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 17 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY "CLAIM" (AS DEFINED IN SECTION 17) BETWEEN YOU AND NINTENDO. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION PROVIDED THAT YOU FOLLOW THE PROCEDURE SET FORTH IN SECTION 17 WHICH, AMONG OTHER THINGS, REQUIRES YOU TO LINK YOUR NINTENDO ACCOUNT TO THE APPLICATION (SEE SECTION 7 REGARDING LINKED SERVICES AND SECTION 17 FOR MORE DETAILS).
For the purposes of this Agreement, the following terms shall have the following definitions:
- "Additional Terms" means the terms we reference or link to within this Agreement, including, without limitation, those set forth at the end of this Agreement;
- "Content" collectively refers to all software (including, without limitation, Digital Items), documentation, music, data, downloadable content, updates and upgrades thereto, services, and other items that we make available to you through and in connection with the Application;
- "Digital Items" means content (including, but not limited to, in-game currency) you purchase or otherwise acquire for use in the Application through the mechanisms we make available;
- "Linked Services" means the services (other than the Application) offered by Nintendo or its partners we make available for use with the Application, including, without limitation, the Nintendo Account Service and Third Party Services;
- “Nintendo Account” means the account created by a customer that is utilized with the Nintendo Account Service;
- "Nintendo Account Service" means the services offered by Nintendo or its partners that are accessed through or offered in connection with a Nintendo Account, including, without limitation, Linked Services;
- “Third Party Service(s)” means the services, applications, software, content, and data, including updates and upgrades thereto, offered by authorized third parties that are made available in connection with the Application;
- "User-Generated Content" or “UGC” means user names, text, images, audio, video, customized levels or other content you create, share, transmit, or otherwise make accessible or viewable by the public or other users of the Application.
2. Creating a Nintendo Account
You may need to create a Nintendo Account and link it to the Application to utilize certain Application features. Please see Nintendo’s website for information on how to create and use a Nintendo Account.
3. Use of the Application
3.1 You must comply with each term and condition of this Agreement when you use the Application, including by providing complete and accurate registration information.
3.2 You are solely responsible for all costs arising in connection with your use of the device on which you use the Application, including, without limitation, costs associated with your Internet or mobile connection.
3.3 The Application may not be compatible with all devices, connection services, or service plans. Not all Application features are available to all customers. Availability may depend on a customer’s location, device type, service plan, and other factors or restrictions.
3.4 If you change your country-of-residence setting within the Application, you will be required to accept the user agreement corresponding to your newly selected country. Application features may vary by country. Nintendo assumes no liability for any loss incurred in connection with a change to your country setting.
3.5 We may suspend, modify, or terminate all or a portion of the Application without notice or liability to you.
4. License to Use the Application
Subject to the terms of this Agreement, Nintendo grants to you a nonexclusive, nontransferable, revocable license to use the Application as permitted by this Agreement solely for your personal and noncommercial use. The Application cannot be used for any other purpose. You are not permitted to lease, rent, sublicense, publish, copy, modify, adapt, translate, reverse engineer, decompile, or disassemble all or a portion of the Application without Nintendo’s prior written consent or unless otherwise expressly permitted by applicable law.
5. Digital Items
5.1 By purchasing or otherwise acquiring Digital Items, you obtain a limited license (as set forth in Section 4) to utilize such Digital Items within the Application. Other than this limited license, you have no right or title in or to Digital Items. Digital Items cannot be sold or transferred to a third party (unless a transfer is permitted within the Application) and cannot be exchanged for or converted to cash or legal tender or for any goods or services outside of the Application.
5.2 Except as otherwise permitted by Nintendo, Digital Items are not returnable or refundable.
6. User-Generated Content / Use of Information
6.1 The Application may permit you to send, receive, or otherwise share User-Generated Content with others.
6.2 Except for any Nintendo Intellectual Property (as defined in Section 8) therein, you own your UGC. By entering into this Agreement, you grant Nintendo (where used in this Section 6, Nintendo includes Nintendo’s subsidiary and affiliated companies) a worldwide, royalty-free, irrevocable, perpetual, nonexclusive, and sublicenseable license to use, reproduce, modify, adapt, publish, translate, distribute, perform, and display User-Generated Content, in whole or in part, and to incorporate your User-Generated Content in other works, in any form, media, or technology now known or later developed, including for promotional or marketing purposes, without any payment to you. You acknowledge that your User-Generated Content may be viewed, reproduced, published, and/or modified by Nintendo or third parties. You acknowledge that Nintendo may delete any User-Generated Content from the Application and/or Nintendo servers at any time, for any reason, in its sole discretion without notice or liability to you. Nintendo reserves the right to not post or publish User-Generated Content and is not obligated to store any User-Generated Content.
6.3 Nintendo assumes no responsibility for any User-Generated Content made available by you or any third party in connection with the Application. Nintendo is not responsible for any loss of or damage to any User-Generated Content, nor is Nintendo liable for any incorrect, defamatory, libelous, false, obscene, or offensive content you may encounter in connection with User-Generated Content. User-Generated Content is the sole responsibility of the user that made it available in connection with the Application.
6.4 User-Generated Content you make available through the Application must comply with the Nintendo Code of Conduct (as set forth in Section 9).
6.5 By making User-Generated Content available through the Application, you represent that you are entitled to do so and agree that Nintendo is not obligated to monitor or protect your rights in any User-Generated Content; however, you give Nintendo the right to enforce your rights in such User-Generated Content at Nintendo’s election, including but not limited to the right to take legal action (at our cost) on your behalf.
6.6 Nintendo may scan, access, use, monitor, delete, disclose, or preserve information associated with your use of the Application (including, without limitation, User-Generated Content) as is necessary, in Nintendo’s discretion, (a) to comply with applicable law or to respond to legal process from competent authorities; (b) to enforce this Agreement or protect the rights of Nintendo, its customers, or the public; (c) to help prevent a loss of life or serious physical injury to anyone; (d) to prevent potentially illegal or offensive activities; and (e) to provide and improve features of the Application.
7. Linked Services
7.1 We are not responsible for any Third Party Services. Third Party Services are not reviewed or monitored by us and may be subject to separate terms and conditions. Your access and use of Third Party Services is at your own risk.
7.2 In the event you disconnect a Linked Service, such disconnection may result in the loss of rights and benefits conferred to you in connection with such Linked Services, including, without limitation, rights or benefits under the Application. Nintendo is not responsible to you for any loss resulting from your disconnection of a Linked Service.
7.3 You must comply with the terms and conditions applicable to Linked Services.
7.4 If you link your Nintendo Account to the Application, the two cannot be unlinked. If your linked Nintendo Account is terminated or you delete it for any reason, you will lose access to all or a portion of the Application’s save data, including but not limited to Digital Items.
8. Intellectual Property Rights
8.1 Except for the limited license granted to you in Section 4, Nintendo retains and reserves all rights, titles, and interest in and to all Nintendo-owned or licensed intellectual property utilized in and in connection with the Application, including, without limitation, Content, registered and unregistered trademarks, service marks, logos, registered and unregistered designs, copyrights, database rights, inventions, patents, trade secrets, know-how, and other confidential and proprietary information of Nintendo, and all other proprietary or intellectual property rights of any kind in any country (collectively, the “Nintendo Intellectual Property”).
8.2 If you believe that any material within the Application infringes any intellectual property right which you own or control, please refer to our Intellectual Property Policy for information on how to submit a notice of infringement.
9. Code of Conduct
To help keep the Application friendly and safe for all users, you agree that you will adhere to Nintendo’s Code of Conduct found here
10. Customer Responsibility
You agree to indemnify Nintendo and its partners from and against any loss or damage resulting from your wrongful use of the Application or any other breach of this Agreement.
11. Disclaimer of Warranties and Limitation of Liability
USE OF THE APPLICATION IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NINTENDO OR ITS REPRESENTATIVES CREATES A WARRANTY. THE APPLICATION, INCLUDING, WITHOUT LIMITATION, ALL CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NINTENDO DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE APPLICATION EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NINTENDO WILL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE APPLICATION, EVEN IF NINTENDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, NINTENDO’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH ANY CLAIMS ARISING OUT OF OR RELATING TO THE APPLICATION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR THE APPLICATION. IF A LAW RESTRICTS OUR ABILITY TO LIMIT LIABILITY OR DISCLAIM WARRANTIES, THE LIMITATIONS LISTED ABOVE MAY NOT APPLY TO YOU. IN THAT CASE, WE LIMIT OUR LIABILITY AND DISCLAIM WARRANTIES TO THE GREATEST EXTENT PERMITTED BY LAW.
12. Updates to the Application and Service Availability
12.1 You acknowledge and agree that some devices may be configured to automatically receive updates. If you enable such an auto-update feature on your device, updates to the Application may be automatically downloaded and installed on your device. These auto-update features are not a part of our Application, so you should consult with the manufacturer of your device for more information regarding these features. Updates may be used to deliver features and services (including software, content, and data) and may be required for you to fully enjoy all features of the Application or for continued access to and use of the Application. All such updates are subject to this Agreement unless other terms accompany them, in which case those other terms apply.
12.2 We strive to keep the Application up and running; however, all online services suffer occasional disruptions and outages. In the event of an outage you may not be able to access the Application. WITHOUT LIMITING SECTION 11, NINTENDO DOES NOT MAKE ANY GUARANTEE OR WARRANTY WITH RESPECT TO THE AVAILABILITY OF THE APPLICATION, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NINTENDO SPECIFICALLY DISCLAIMS ANY GUARANTEE OR WARRANTY THAT THE APPLICATION WILL NOT BE SUBJECT TO DISRUPTION, DAMAGE, CORRUPTION, LOSS, OR REMOVAL (A “SERVICE INTERRUPTION”). NINTENDO SHALL NOT BE RESPONSIBLE SHOULD ANY SUCH SERVICE INTERRUPTION OCCUR, AND YOU AGREE THAT IN NO EVENT WILL YOU BE ENTITLED TO OR RECEIVE A REFUND, CREDIT OR ANY OTHER COMPENSATION FOR ANY CONTENT THAT YOU ARE NOT ABLE TO USE OR HAVE DIFFICULTY USING, IN WHOLE OR IN PART, DUE TO ANY SERVICE INTERRUPTION.
13. Changes to This Agreement
We may update this Agreement from time to time. When we do, we will post the current version in the Application. If you do not agree to such an update, you must immediately stop using the Application. By continuing to access or use the Application, you confirm your acceptance of the updated Agreement.
14. Termination of This Agreement
14.1 You may terminate this Agreement by uninstalling the Application from your device(s). Your termination does not eliminate any obligations you have to Nintendo or its partners under this Agreement.
14.2 Nintendo may suspend or disable your access to all or a portion of the Application or terminate this Agreement or any part of it if you fail to comply with the terms and conditions of this Agreement, including, without limitation, the Code of Conduct set forth in Section 9. Upon any such termination, you must immediately cease all use of the Application. Nintendo may also terminate all or a portion of this Agreement at any time, for legal, technical or commercial reasons.
15. Assignment of Rights
Except as otherwise permitted by Nintendo in writing, you may not assign, lend, delegate, or otherwise dispose of this Agreement or your rights hereunder without Nintendo’s prior written consent.
If any provision of this Agreement is deemed void or unenforceable, the remainder of the Agreement shall remain in full force and effect.
17. Dispute Resolution; Binding Individual Arbitration; Class-Action Waiver
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
BY ENTERING INTO THIS AGREEMENT YOU AND NINTENDO EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
a. Please contact us using the method described in Section 19 with any questions or concerns you may have regarding the Application. We can typically solve most concerns to our customer’s satisfaction. Any matter we are unable to resolve and all disputes or claims arising out of or relating to the Application or this Agreement, including its formation, enforceability, performance, or breach (each, a “Claim”), with the exception of the matters described in Section 17(c) below, shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer-related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all Claims. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Any such arbitration shall be conducted by the parties in their individual capacities only and not as a class action or other representative action, and the parties waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class-action waiver set forth in the preceding sentence is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in this Section shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
b. The rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1-800-778-7879. To the extent the initial filing fee for the arbitration exceeds the initial filing fee for a lawsuit, we will pay the difference in fees. If the arbitrator finds the arbitration to be nonfrivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim is less than $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
c. Section 17(a) does not apply to any Claim (i) in which a party is attempting to protect its intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) or (ii) that may be brought in small-claims court.
d. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Section 17 by sending written notice of your decision to opt out to the following address: Nintendo of America Inc., Attn: CS Admin, 4600 150th Ave NE, Redmond, WA 98052 within 30 days of installing the Application. You must link the Application to your Nintendo Account prior to opting out. Your notice must include your name, contact information and the email address registered to your Nintendo Account. If you send this notice including the information required, then Section 17 will not apply to either party. If you do not send this notice, then you agree to be bound by this Section 17.
18. Applicable Law and Jurisdiction
The laws of the state of Washington, USA, without regard to its conflict of laws and provisions, governs this Agreement and any dispute of any sort pertaining to this Agreement or the Application that might arise between you and Nintendo.
If Section 17 is held to be invalid or unenforceable, then for any Claims, the parties consent to the exclusive jurisdiction of the courts located in King County, Washington, USA.
19. Contact Information
If you wish to contact Nintendo concerning the Application, you must fill out and send the inquiry form on the Application or such other method provided by Nintendo.
Customers Using OS Smart Devices from Apple, Inc.
This Article applies to users who use the Application on OS smart devices provided by Apple, Inc. (hereinafter "Apple"). In the event of conflict between this Article and the Agreement, this Article shall apply.
1. Nintendo grants a license to you only, for the nonexclusive, nonassignable right to download and use the Application for your personal, noncommercial purposes, according to the terms of the iTunes Store Service User Agreement.
2. Apple bears no responsibility for any claims by you or a third party related to your possession or use of the Application, including the following:
(1) A claim of product liability;
(2) A claim that the Application does not comply with applicable law and regulations;
(3) A claim based on any consumer protection act or similar laws and regulations;
(4) A claim by you or a third party that the Application or the use of the Application by you infringes the intellectual property rights of you or a third party.
3. You acknowledge and agree that Apple has no responsibility to provide maintenance or support services for the Application.
4. The Application is provided by Nintendo Co., Ltd., headquartered at 11-1 Hokotate-cho, Kamitoba, Minami-ku, Kyoto 601-8501, Japan. Please see Article 19 of this User Agreement for contact information concerning the App.
5. You represent and warrant that you do not live in a US export-embargoed country or a country designated as a State Sponsor of Terrorism by the United States government and that you are not on the list of people barred or excluded from the United States.
6. You acknowledge and agree that Apple and Apple's subsidiaries are third-party beneficiaries to this Agreement, and that, by acknowledging the provisions of this Agreement, you acknowledge that Apple has the right (or is deemed to have acknowledged the right) to enforce this Agreement against you as third-party beneficiary.