Version 7.2019 (AU/NZ)
This is a binding agreement between you, an individual, and Nintendo Co., Ltd., 11-1 Hokotate-cho, Kamitoba, Minami-ku, Kyoto 601-8501, Japan (“Nintendo”). This End User Licence Agreement (the “Agreement”) covers your use of software (the “Digital Product”) developed by Nintendo, which you have downloaded to a supported device via the means specifically approved by Nintendo for this purpose and to which this End User Licence Agreement has been attached by Nintendo.
This Agreement comes into force when you download the Digital Product to a supported device and indicate your acceptance of this Agreement by means specifically provided by Nintendo for this purpose.
If you are under the age of 18, you must get your parent or legal guardian to accept this Agreement.
Nintendo grants to you a non-exclusive licence to use the Digital Product (including any updates of the Digital Product) for your personal and non-commercial use. The Digital Product must not be used for any other purpose. In particular, without Nintendo’s written consent, you must neither lease nor rent the Digital Product, nor sublicense, publish, copy, modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Digital Product other than as expressly permitted by applicable law.
The licence for the Digital Product is valid from the moment of your acceptance of this Agreement by means specifically provided by Nintendo for this purpose. The licence is registered to your user account related to the Digital Product.
If the use of the Digital Product requires you to log in, you must keep your login information secure at all times. In the event you become aware of or reasonably suspect any breach of security, such as an unauthorised access to your Digital Product by a third party, or of any loss, theft or disclosure of your login information, you must immediately notify Nintendo.
If the Digital Product offers any online functionalities, you are responsible for any costs in relation to the use of online functionalities via your copy of the Digital Product, (including any internet connection fees, the costs for the necessary equipment and any other relevant fees and charges), whether by you or by your friends, your family or any other third party. The exact amount of these costs depends, among other things, on the device that you use, on your use of the Digital Product and on the conditions of your internet access provider.
The features available in the Digital Product may differ from country to country. If you change the country you wish your user account to be associated with, you may need to accept the End User Licence Agreement specific to the new country to be able to continue using your Digital Product with the new country settings.
The Digital Product may offer the functionality of creating, sending, posting or otherwise making available the “User-Generated Content” meaning any communications, messages, text, images, drawings, photos, sound, voice/audio recordings, music, movies, information, data and any other material and content (including user names, nicknames, customised characters, customised levels, maps, scenarios etc.).
Nintendo is not responsible for any User-Generated Content. User-Generated Content is the sole responsibility of the user who posted, sent or otherwise made available such User-Generated Content using the Digital Product. Nintendo is not obligated to monitor User-Generated Content. However, if Nintendo becomes aware of possibly unlawful or inappropriate User-Generated Content, Nintendo reserves the right to delete or to block access to such User-Generated Content at its own discretion.
If you post, send or otherwise make available User-Generated Content using the Digital Product you grant Nintendo a non-exclusive, worldwide, royalty-free, perpetual and fully transferable right to reproduce, publish and make available User-Generated Content as envisaged by the Digital Product that you use to post, send or otherwise make available such User-Generated Content. This does not apply to User-Generated Content contained in any private messages or in any other private communication.
You acknowledge that, depending on the functionalities of the Digital Product, your User-Generated Content may be viewed, reproduced, published and/or modified by third parties. You should not include personal information such as your name, your email address, your address or your telephone number or any other sensitive data in User-Generated Content.
You acknowledge that any User-Generated Content may be deleted from Nintendo servers at any time. Nintendo is not obligated to store any User-Generated Content.
User-Generated Content that you post, send or otherwise make available through Nintendo Network must comply with the Nintendo Code of Conduct.
When using the Digital Product, you must comply with the Nintendo Code of Conduct. The Nintendo Code of Conduct prohibits all illegal, harmful or otherwise inappropriate conduct, including, but not limited to the following:
If the Digital Product offers online functionalities and the device on which the Digital Product has been installed, is connected to the internet, the Digital Product, new versions of the Digital Product (together “Updates”) and important service messages from Nintendo. A software update on your Digital Product may be required to fully or to further enjoy the Digital Product. It may perform automatic background communication with Nintendo servers and other supported devices.
Background communication with Nintendo servers enables the Digital Product to receive software updates, updates for content used via the Digital Product and important service messages from Nintendo. A software update of your Digital Product may be required to fully enjoy all its features.
Background communication with other supported devices may happen depending on the functionalities of the Digital Product. You will be informed about such background communication features in your Digital Product.
You can disable background communication features in the settings of your device and/or in the settings of the Digital Product.
A software update of the operating system of the supported device may be required to use an Update.
The Digital Product may offer the functionality of acquiring and/or using digital items within the Digital Product (“Virtual Items”).
The means to acquire Virtual Items may be provided by Nintendo and/or third parties (for example, via the service which you used to download the Digital Product). The acquisition of Virtual Items is subject to the terms and conditions of the respective service.
If you acquire any Virtual Items, the Virtual Items will be made available to you by Nintendo in the form of a licence (right) to trade or exchange for other digital items within the respective Digital Product. The Virtual Items as well as other digital items traded or exchanged for the Virtual Items can only be used within the respective Digital Product, cannot be transferred to a third party (unless a transfer is permitted within the Digital Product) and cannot be exchanged for legal tender or any item or right outside of the Digital Product.
Except as explicitly set out in this Agreement, Nintendo does not provide you with any right, title or interest in the “Nintendo Intellectual Property” (meaning all intellectual property, including but not limited to registered and unregistered trademarks, service marks, logos, registered and unregistered designs, copyrights, database rights, inventions, patents, trade secrets, know-how, Mii characters and other confidential and proprietary information which Nintendo developed, owns or is granted a licence to use). Nintendo reserves all rights in the Nintendo Intellectual Property.
This provision does not exclude, restrict or modify any statutory provision which implies non-excludable conditions, warranties or consumer guarantees into this Agreement. To the full extent permitted by law, the liability of Nintendo under such non-excludable conditions, warranties and consumer guarantees is limited to supplying the Digital Product again or the payment of the cost of having the Digital Product supplied again (whichever Nintendo chooses).
Otherwise, we provide the Digital Product without express or implied warranty, undertaking, inducement or representation of any kind. This means that Nintendo does not warrant that the Digital Product will always work properly or that it will be free from viruses, hacks or other harmful intrusions.
Subject to this clause and to the full extent permitted by law and subject to any non-excludable statutory condition, warranty or consumer guarantee, Nintendo’s liability to you and any other person:
Except in relation to non-excludable conditions, warranties or consumer guarantees, these limitations on Nintendo’s liability apply to all matters relating to the Digital Product including your use of the user device. These limitations apply to any type of claim, including breach of contract, breach of warranty, strict liability, negligence or other tort.
You agree to indemnify and hold Nintendo, its affiliates and subsidiaries harmless from and against any loss, liability or claim (including reasonable legal fees) arising out of or in connection with your use of the Digital Product in an unlawful manner or otherwise in breach of the terms of this Agreement (including, without limitation, the Nintendo Code of Conduct). This indemnity shall include, in particular, any loss, liability or claim arising out of or in connection with any User-Generated Content including, without limitation, any photographs, videos or any other materials you upload.
A current version of this Agreement will always be available in the Digital Product. Nintendo may change the terms and conditions of this Agreement at any time so far as this is reasonably necessary in order to protect Nintendo’s legitimate interests or helpful to enhance the Agreement or to adapt it to reflect changes in technical or legal requirements.
Nintendo may make changes to this Agreement without notice if the changes are not likely to cause detriment to you. In other cases, Nintendo may request you to re-accept the revised Agreement, in which case any such changes of the terms and conditions of this Agreement become valid if you accept the updated Agreement. If you do not accept the updated Agreement, you may not be able to access the Digital Product and Nintendo reserves the right to terminate this Agreement or any portion of it upon a reasonable notice.
If you do not agree with changes to this Agreement, you may cease using the Digital Product or terminate this Agreement.
You may terminate this Agreement at any time via the means specifically approved by Nintendo for this purpose (for example, by using the functionalities of the service which you used to download the Digital Product) or by providing notice to Nintendo Customer Support.
Nintendo may terminate this Agreement, or any part of this Agreement, if you breach the terms of this Agreement. In case of minor breaches Nintendo will provide you with a prior warning of your non-compliance and give you an opportunity to remedy this. However, if you commit a serious breach, Nintendo is not required to provide you with such prior warning. Serious breaches include, but are not limited to, a breach of the Nintendo Code of Conduct and other important provisions of this Agreement.
Nintendo may also terminate this Agreement, or any part of this Agreement, at any time, for legal, technical or commercial reasons. In this case, we will provide you with reasonable advance notice.
If any part of this Agreement is found to be invalid or unenforceable, that part of the Agreement will no longer apply. You agree that the invalid part will be considered deleted from the Agreement, but that all other parts of the Agreement will remain in effect. You further agree that we may replace the invalid part by a provision which reflects or comes closest to the initial intention.
The contractual relationships of the parties of this Agreement shall be governed by the laws of Japan, to the exclusion of the UN Sales Convention on Contracts for the International Sale of Goods. For the avoidance of doubts, this does not affect the applicability of mandatory statutory laws of your country of residence such as consumer protection laws.
If you have any questions about this Agreement, please fill out and send the inquiry form on the Digital Product or send an email to Nintendo: drmario-world-support@nintendo.co.jp
In case you use the Digital Product on a device provided by Apple, Inc. (“Apple”), the following applies: