End User Licence Agreement (Dr. Mario World End User License Agreement)

Version 07.2019 (EU-EN)

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.

1 Licence

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.

2 Use of 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.

3 User-Generated Content

The Digital Product may offer the functionality of creating, sending, posting or otherwise making available “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.

4 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:

a) Illegal, harassing, hateful, defamatory, embarrassing, offensive, obscene, sexually explicit or otherwise objectionable actions performed via the Digital Product;
b) Making, sharing or playing unauthorised copies of the Digital Product or any part of it; making new versions of existing Digital Products (“derivatives”);
c) Using cheats (including exploits of any in-game bugs and malfunctions granting you and/or any other user an advantage over other users not using such methods), automation software (bots), hacks, mods or any other unauthorised software designed to modify the Digital Product or any part of it; attempting to derive source code of the Digital Product;
d) Gaining unauthorised access to any of Nintendo’s computers, hardware, equipment, servers or networks used to support the Digital Product; hosting, intercepting, emulating, reverse engineering any part of the Digital Product or redirecting the communication protocols used by Nintendo to support the Digital Product, regardless of the method used to do so;
e) Engaging in any commercial or advertising activity, or arranging meetings using the Digital Product;
f) Selling, trading, assigning or otherwise transferring your user account related to the Digital Product to another person or entity;
g) Posting, sending or otherwise making available via the Digital Product any content that infringes the rights of others, including any patent, trademark, trade secret, copyright, privacy rights, portrait rights or other intellectual property or proprietary rights;
h) Posting, sending or otherwise making available via the Digital Product any content that contains personal data (including photos, images and videos) of any third party without their permission;
i) Fraudulent activities performed in relation to the Digital Product;
j) Selling, trading, assigning, licensing, or otherwise conveying for real money digital items that may be used within the Digital Product;
k) Engaging in any conduct disrupting or diminishing the game experience for other users of the Digital Product; in particular, engaging in any behaviour that endangers the gaming and usage experience of other users.

5 Background Communication Features and Updates

a) Background Communication Features

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 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, new versions of the Digital Product (together “Updates”) and important service messages from Nintendo. A software update of your Digital Product may be required to fully or to further enjoy the Digital Product.

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.

b) Updates

A software update of the operating system of the supported device may be required to use an Update.

6 Virtual Items

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.

7 Nintendo Intellectual Property

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.

8 Nintendo’s Liability

If we fail to comply with these terms, Nintendo is liable for damages arising as a foreseeable result of our negligence or breach of this Agreement. We are not responsible for any loss or damage that is not foreseeable. Loss or damage are foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we entered into this Agreement. As the Digital Product is for your own personal recreational and non-commercial use, we are also not responsible for any loss of profit, loss of business, business interruption, loss of data or loss of business opportunity.

We do not in any way exclude or limit our liability for: intent or gross negligence; death or personal injury; fraud or fraudulent misrepresentation; any breach of the terms implied by law relating to our title to the Nintendo Intellectual Property and the Digital Product; any breach of the terms implied by law relating to the description, satisfactory quality and fitness for purpose of the Digital Product; and product liability.

9 Termination of the 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 your behaviour is utterly unacceptable, Nintendo is not required to provide you with such prior warning. Behaviour is considered utterly unacceptable in case of serious violations 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.

10 Governing Law

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.

11 Customer Support

If you have any questions about this Agreement, please fill out and send an enquiry form on the Digital Product or send an email to Nintendo: [drmario-world-support@nintendo.co.jp].

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A. Use on Apple’s Devices

If you use the Digital Product on a device provided by Apple, Inc. (“Apple”), the following applies:

a) The Digital Product should be used in line with the App Store Terms of Service.
b) The parties acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Digital Product.
c) The parties acknowledge that Apple bears no responsibility for any claims that the use of the Digital Product infringes the intellectual property rights of third parties.
d) You represent and warrant that you do not live in a US export-embargoed country or a country designated as a “terrorist supporting” country by the United States government, and that you are not on the list of people barred or excluded from the United States.
e) The parties acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement and Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third party beneficiary thereof.

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B. Instructions for Right to Cancel

If you use the Digital Product to purchase Virtual Items from Nintendo, the following applies:

RIGHT TO CANCEL (Digital content)

You have the right to cancel this contract within 14 days without giving any reason.

The cancellation period will expire after 14 days from the day of the conclusion of the contract.

To exercise the right to cancel, you must inform us (Nintendo, Herriotstrasse 4, 60528 Frankfurt am Main, Germany, telephone number: +49 69 66 77 47 5412, fax number: +49 69 667747 95412, email: service@nintendo.de) of your decision to cancel this contract by a clear statement (e.g. a letter sent by post, fax or email). You may use the attached model cancellation form, but it is not obligatory.

To meet the cancellation deadline, it is sufficient for you to send your communication concerning your exercise of the right to cancel before the cancellation period has expired.

Effects of cancellation

If you cancel this contract, we will reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs arising if you chose a type of delivery other than the least expensive type of standard delivery offered by us).

We may make a deduction from the reimbursement for loss in value of any goods supplied, if the loss is the result of unnecessary handling by you.

We will make the reimbursement without undue delay and not later than:

(a) 14 days after the day we receive back from you any good supplied; or
(b) (if earlier) 14 days after the day you provide evidence that you have returned the goods; or
(c) if there were no goods supplied, 14 days after the day on which we are informed about your decision to cancel this contract.

We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as result of the reimbursement.

We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.

You shall send back the goods or hand them over to us, without undue delay and in any event not later than 14 days from the day on which you communicate your cancellation from this contract to us. The deadline is met if you send back the goods before the period of 14 days has expired.

You will have to bear the direct cost of returning the goods.

You are only liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods.

If you requested to begin the performance of services during the cancellation period, you shall pay us an amount which is in proportion to what has been performed until you have communicated us your cancellation from this contract, in comparison with the full coverage of the contract.

The cancellation right expires earlier in respect of the contracts listed below:

contracts for the supply of sealed goods: the cancellation right for sealed goods which are not suitable for return due to health protection or hygiene reasons expires if they are unsealed after delivery;
contracts for the supply of sealed audio recordings, video recordings or sealed computer software: the cancellation right for sealed audio or sealed video recordings or sealed computer software (such as video games) expires if they are unsealed after delivery;
contracts for the supply of digital content: where we supply digital content not on a tangible medium, the cancellation right expires if we have begun our supply of the digital content after you have expressly consented that we can begin the supply before the cancellation period ends, and you have acknowledged that you lose your right to cancel the contract in this circumstance;
service contracts: the cancellation right expires earlier if the service has been fully performed by us, the performance of the service began with your prior express consent, and you acknowledged that you lose your right of cancellation once the contract has been fully performed.

Model Cancellation Form

(If you want to cancel the contract please complete and return this form.)

To Nintendo, Herriotstrasse 4, 60528 Frankfurt am Main, Germany, fax number: +49 69 667747 95412, email: drmario-world-support@nintendo.co.jp

I/We ( * ) hereby give notice that I/we ( * ) cancel my/our ( * ) contract of sale of the following goods( * )/for the provision of the following service ( * ):

Ordered on( * )/received on ( * );
Name of consumer(s);
Address of consumer(s);
Signature of consumer(s) (only if this form is notified on paper),
Date:

( * ) Delete as appropriate.

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