Nintendo Switch 2: User Agreement
End User License Agreement (EULA)
This is an agreement (the “Agreement”) between you and Nintendo of America Inc. (together with its affiliates, “Nintendo” or “we” or “our”) and governs your access to and use of (i) this Nintendo video game console and its accessories (the “Console”) and (ii) the software, content, and data that came with the Console, or that is compatible with or authorized for use in connection therewith, including but not limited to video games, downloadable content, and other applications for the Console, and any updates or replacement to that software, content, or data that we or our authorized providers make available to you (such items described in this clause (ii), collectively, the “Software”).
Please read this Agreement carefully before using the Console or the Software. By clicking the “Accept” option, by using the Console, or by using the Software, you represent that you are 18 years of age or older (or the age of majority where you live) and agree to be bound by this Agreement. By entering into this Agreement, you acknowledge and agree that you are legally and financially responsible for any use of the Console and/or the Software, including any use of the Console and/or Software by other users, and are responsible for ensuring that all other users of the Console and/or Software comply with the terms of this Agreement and any other applicable terms. If you are the parent or legal guardian of a minor and you agreed to this Agreement on their behalf, you agree that you will be responsible for all uses of the Console and the Software by them whether or not such uses were explicitly authorized by you.
NOTE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 7 THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, REQUIRES BOTH YOU AND NINTENDO TO RESOLVE MOST “CLAIMS” (AS DEFINED IN SECTION 7) ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, A CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. YOU MAY OPT OUT OF BINDING ARBITRATION BY FOLLOWING THE PROCEDURE IN SECTION 7(J).
If you purchased the Console or the Software from an authorized retailer but do not agree to the terms of this Agreement, you may be able to return the Console or the Software, as applicable, for a refund in accordance with the applicable return policy. Individuals who do not agree to this Agreement or individuals under the age of 18 who do not have a parent or legal guardian’s agreement to this Agreement, must not use the Console or the Software.
Nintendo is thoughtful about the features and services we offer our users, including children. Parents and legal guardians play the most important role in helping their children understand how to safely engage with technology. We encourage use of parental controls to help parents and legal guardians manage use of the Console’s features and services.
Some of the services available through the Console and the Software are subject to and governed by separate terms and conditions (“Additional Terms”). In addition to the Additional Terms identified in Section 12, we may also make Additional Terms available to you through the applicable service. When presented through a service, your acceptance of such Additional Terms is required for you to use the applicable service.
- License Grant/Restrictions; Third-Party Content.
Subject to the terms of this Agreement, Nintendo grants you a non-exclusive, revocable license to use the Software solely on the Console for your personal, non-commercial use. For clarity, the Software is licensed, not sold, to you, and you may not make use of the Software except as expressly authorized by this Agreement. Without limitation, you agree that you may not (a) publish, copy, modify, reverse engineer, lease, rent, decompile, disassemble, distribute, offer for sale, or create derivative works of any portion of the Software; (b) bypass, modify, decrypt, defeat, tamper with, or otherwise circumvent any of the functions or protections of the Console or the Software, including through the use of any hardware or software that would cause the Console or the Software to operate with any unauthorized, illegal, or pirated software or hardware; (c) reinstall any prior version of the Software on the Console or otherwise obtain or install any version of the Software other than through distribution methods provided by Nintendo; (d) install or use any Software which Nintendo identifies as an unauthorized copy, or from which one or more unauthorized copies have been made; or (e) exploit the Software in any manner other than to use it with the Console in accordance with its documentation and intended use. Content obtained through the use of an unauthorized device, or through the unauthorized modification of the Console or the Software, may be removed. You agree not to access or use the Console or the Software in an unauthorized or unlawful manner or to access the consoles, devices, accounts, or data of others (including Nintendo) without their (or our) consent. You acknowledge that if you fail to comply with the foregoing restrictions Nintendo may render the Console and/or the Software permanently unusable in whole or in part.
You may be able to separately purchase physical media (such as cartridges) at various retailers which will allow you to use Software, including video games, that is compatible with the Console (“Physical Media”), and you acknowledge and agree that your use of such Software will be governed by this Agreement.
The Software that comes with, or that is compatible with or authorized for use in connection with, the Console may be provided, maintained, and/or licensed by a third-party, or contain, refer to, or provide you with links to websites, applications, software, content, or data that are provided and/or maintained by third parties and not by Nintendo (collectively, “Third-Party Content”). Nintendo does not own, control, endorse, review, or monitor the Third-Party Content; makes no representation or warranties of any kind regarding the Third-Party Content; and is not responsible for any Third-Party Content. If you access or use any Third-Party Content, you do so at your own risk. Your use of any Third-Party Content may be subject to additional terms imposed by the third party that operates such Third-Party Content.
The Software may contain software licensed under the terms of open-source licenses. Information regarding open-source software included in the Software that came with the Console, including the licenses under which such open-source software is distributed, can be found at https://www.nintendo.co.jp/support/oss/index.html.
- Updates; Service Availability.
The Software is constantly evolving, and we may update or change the Software at any time, in whole or in part. Such updates or changes to all or a portion of the Software (an “Update” or “Updates”) may be required for you to play games; enjoy features, software, data; or content; or continue to access services available through the Console. Some of these Updates may be provided automatically without notice to you. You consent to Nintendo providing you with, and installing, automatic Updates to the Software in the background with or without notice to you. You agree that any Update is considered part of the Software and governed by this Agreement.
After the Software is updated or changed (including without limitation in connection with an Update), any existing or future unauthorized modification of the Console or the Software, or the use of an unauthorized device in connection with the Console, may render the Console and/or the Software permanently unusable in whole or in part.
You must install or have installed the most current version of the Software as soon as you reasonably can. Some Updates or services may change your current settings, cause a loss of data or content, or cause functionality or feature loss.
You acknowledge that certain components of the Software, including additional data that may need to be downloaded in order to access some or all of the Software associated with Physical Media, require an internet connection. We strive to keep the services that allow you to download this data (the “Download Services”) up and running; however, all online services suffer occasional disruptions and outages. In the event of an outage to the Download Services, you may not be able to download the data required to access the applicable Software in whole or in part.
Further, you acknowledge that we may in the future decide to discontinue support for the Download Services either entirely or with respect to specific Software, including in connection with Physical Media, after which point it may no longer be possible for you to download the data required in order to access the applicable Software, or re-download the data if data you had previously downloaded has been removed or has become damaged, corrupted, lost or otherwise no longer functional on your Console.
TO THE EXTENT PERMITTED BY LAW AND WITHOUT LIMITING SECTION 6, NINTENDO DOES NOT MAKE ANY GUARANTEE OR WARRANTY WITH RESPECT TO THE AVAILABILITY OR PERFORMANCE OF THE DOWNLOAD SERVICES OR THE SOFTWARE, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NINTENDO SPECIFICALLY DISCLAIMS ANY GUARANTEE OR WARRANTY THAT THE DOWNLOAD SERVICES OR THE SOFTWARE WILL NOT BE SUBJECT TO DISRUPTION, DAMAGE, CORRUPTION, LOSS, REMOVAL, OR DISCONTINUATION (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 SOFTWARE THAT YOU ARE NOT ABLE TO USE OR HAVE DIFFICULTY USING, IN WHOLE OR IN PART, DUE TO ANY SERVICE INTERRUPTION.
- Use of Information.
We may use and share information that you give to us and information that we collect when you use our products and/or services (including the Console and the Software) as described in our Privacy Policy. This may include personally identifiable information as well as anonymous or aggregate information about your use of the Console or the Software or the Console’s performance. We recommend that you review our Privacy Policy before each use of a Nintendo product or service to help you stay informed of our privacy practices. Our Privacy Policy is designed to help you understand the types of information that we collect, how we use and share the information, and how the information is protected.
- Nintendo Intellectual Property/Reservation of Rights.
Nintendo owns all right, title, and interest (including all intellectual property rights) in, and has the right to use and sublicense, the Nintendo Intellectual Property utilized in connection with the Console and the Software. “Nintendo Intellectual Property” refers to all intellectual property, including but not limited to registered and unregistered trademarks, logos, registered and unregistered designs, copyrights, database rights, inventions, patents, trade secrets, know-how, and other confidential and proprietary information that Nintendo developed, owns, or is granted a license to use. The sale, transfer, license, or use of the Console or the Software does not transfer any title or ownership of any of our intellectual property rights, including without limitation the Nintendo Intellectual Property. We reserve all rights that we have not expressly granted in this Agreement. Nintendo reserves all rights in the Nintendo Intellectual Property.
- Remedies for Violation; Termination.
Your rights under this Agreement will immediately terminate if you violate any term of this Agreement, and upon any such termination you must immediately cease all use of the Console and the Software. Without limiting the foregoing, you acknowledge and agree that if Nintendo, in its sole discretion, determines or reasonably suspects that you have violated this Agreement or our Community Guidelines, Nintendo may implement technical measures designed to disable your access to, or use of, any or all of the Software or the Console.
- Disclaimer of Warranties and Limitation of Liability.
- THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD OF NINTENDO.
- USE OF THE CONSOLE AND THE SOFTWARE IS AT YOUR SOLE RISK. NINTENDO IS NOT RESPONSIBLE FOR ANY NON-NINTENDO SITES, SERVICES, APPLICATIONS, CONTENT, DATA, MESSAGES, OR OTHER ITEMS THAT YOU ACCESS, USE, OR SHARE VIA THE CONSOLE OR THE SOFTWARE. EXCEPT FOR ANY LIMITED WARRANTY THAT APPLIES TO THE CONSOLE AND/OR THE SOFTWARE, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NINTENDO OR ITS REPRESENTATIVES CREATES A WARRANTY, THE CONSOLE AND THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NINTENDO DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE CONSOLE AND THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY GUARANTEE OR WARRANTY WITH RESPECT TO THE AVAILABILITY OR PERFORMANCE OF THE CONSOLE, THE SOFTWARE AND/OR ANY CONTENT OR DATA WHICH YOU MAY STORE OR ACCESS ON THE CONSOLE.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NINTENDO WILL NOT BE LIABLE TO YOU FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE CONSOLE AND/OR THE SOFTWARE, EVEN IF NINTENDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NINTENDO’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH ANY CLAIMS ARISING OUT OF OR RELATING TO THE CONSOLE AND/OR THE SOFTWARE IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR THE CONSOLE.
- 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.
- Dispute Resolution; Binding Individual Arbitration; Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND NINTENDO TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH YOU AND NINTENDO CAN SEEK RELIEF FROM EACH OTHER. THIS ARBITRATION PROVISION PRECLUDES YOU AND NINTENDO FROM SUING IN COURT, HAVING A TRIAL BY JURY, OR PARTICIPATING IN A CLASS ACTION. YOU AND NINTENDO AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. YOU AND NINTENDO ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IN SECTION 7(J) IF YOU WISH TO OPT OUT OF THE REQUIREMENT TO ARBITRATE ON AN INDIVIDUAL BASIS.
- Claims Subject to this Section. This Section 7 applies to all Claims between you and Nintendo. A “Claim” is any dispute, claim, cause of action, or controversy (excluding those exceptions listed below) between you and Nintendo, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either party wishes to seek legal recourse and that arises from or relates to this Agreement, the Console, or the Software or Claims related to the validity, enforceability, or scope of the arbitration provision or any portion of it.
- Customer Service Resolution. Our Contact Center is available to address any concerns you may have regarding the Console or the Software. You may contact them by phone at 1-800-255-3700; by email at useragreement@noa.nintendo.com; or by regular mail sent to Nintendo of America Inc., Attn: User Agreement, 4600 150th Ave NE, Redmond, WA 98052 USA. Most matters can be quickly resolved in this manner to our customer’s satisfaction.
- Required Informal Dispute Resolution. Except as permitted under Section 7(D), if you have a Claim against Nintendo or if Nintendo has a Claim against you, you and Nintendo must first attempt to resolve the Claim informally before either party may bring the Claim in arbitration. You and Nintendo will make a good-faith effort to negotiate for 30 days the resolution of any Claim, or for a longer period as mutually agreed in writing (email suffices) by you and Nintendo, (“Informal Resolution Period”) from the day you or Nintendo receive a written notice of a Claim from the other party (a “Claimant Notice”) in accordance with this Agreement.
You will send any Claimant Notice to Nintendo by certified mail addressed to 4600 150th Avenue NE, Redmond, WA 98052, USA, Attn: General Counsel. Nintendo will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Nintendo. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, telephone number, and any relevant purchase information; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief requested.
The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of resolution if it chooses to do so. You or Nintendo cannot file a Claim in arbitration (or court in accordance with Section 7(D)) before the end of the Informal Resolution Period. If you or Nintendo file a Claim in arbitration or court without complying with all the requirements in Section 7, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party who has not followed the requirements in this Section 7(C), including to reimburse it for any costs and fees—including arbitration, attorney, and expert fees—incurred as a foreseeable consequence of that breach.
The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that You and Nintendo can engage in this informal dispute-resolution process. - Claims Subject to Binding Arbitration; Exceptions. Except for Claims (i) in which a party is attempting to protect its intellectual property rights (such as its patent, copyright, trademark, trade secret, anti-circumvention, or moral rights, but not including its privacy or publicity rights) or (ii) that are properly asserted in small-claims court (provided that the small-claims court does not permit class or similar representative actions or relief), all Claims that are not resolved in accordance with Section 7(C) will only be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
- Binding Individual Arbitration. Subject to the terms of this Section 7(E), a Claim not excluded under Section 7(D) may only be settled by binding individual arbitration conducted by the American Arbitration Association (the “AAA”), https://adr.org/, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”). For Claims arbitrated by the AAA, if you are a “Consumer,” meaning that you only use the Console and/or the Software for personal, family, or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the rules applicable to Claims between you and Nintendo as modified by this Agreement (the “Rules”). For Claims that must be arbitrated by the AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and Nintendo as modified by this Agreement.
If the AAA notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, that Claim may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), www.namadr.com/, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”). For Claims arbitrated by NAM, the then-current version of NAM’s Comprehensive Dispute Resolution Rules and Procedures are the Rules applicable to Claims between you and Nintendo as modified by this Agreement.
This Agreement affects interstate commerce, and the enforceability of this Section 7 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, this Agreement, and the applicable Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim in arbitration and to grant whatever relief would be available in a court under law or in equity, including the power to determine all questions of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Nintendo to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence). 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.
You or Nintendo may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with the AAA in accordance with the Rules (or with NAM in accordance with the Rules if applicable pursuant to this Section 7(E)). Instructions for filing a demand for arbitration with the AAA are available on the AAA website or by calling the AAA at 800-778-7879, and instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550. You will send a copy of any demand for arbitration to Nintendo by certified mail addressed to 4600 150th Avenue NE, Redmond, WA 98052, USA, Attn: General Counsel. Nintendo will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Nintendo. You and Nintendo both agree that the arbitrator must follow the terms of this Agreement.
Any such arbitration shall be conducted by the parties in their individual capacities only and not as a class action or other representative action. The parties waive their right to file a class action or seek relief on a class basis, whether in court or arbitration. If any court or arbitrator determines that the class-action waiver set forth in this paragraph 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 7 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims. Any such claims so released from arbitration must be resolved in accordance with Section 10. - Arbitration Fees. Except for the circumstances outlined in Section 7(G) and for Mass Arbitrations (as defined in Section 7(I)), 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.
- Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
- Confidentiality. If you or Nintendo submits a Claim, you and Nintendo agree to cooperate to seek from the arbitrator or relevant court protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of any discovery. You and Nintendo agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery.
- Mass Arbitrations. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Mass Arbitrations” and will be treated as mass arbitrations according to the AAA’s Mass Arbitration Supplementary Rules (or if filed with NAM, NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures), if and to the extent Mass Arbitrations are filed in arbitration as set forth in this Agreement. You or Nintendo may advise the other if you or Nintendo believe that Claims are Mass Arbitrations, and disputes over whether a Claim meets the definition of “Mass Arbitrations” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable. The following procedures are intended to supplement the AAA’s Mass Arbitration Supplementary Rules (or if filed with NAM, NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures), and to the extent the procedures conflict with those Rules, to supersede them.
Mass Arbitrations may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in a Mass Arbitration from the time a compliant Claimant Notice has been received by a party until this Agreement permits such Mass Arbitration to be filed in arbitration or court.
Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Mass Arbitrations has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Mass Arbitrations have been submitted.
After that point, counsel for the parties will select 20 Mass Arbitrations to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 10 claimants who have provided compliant Claimant Notices for this purpose, and only those selected Claims will be deemed filed with the arbitration provider. The parties acknowledge that resolution of some Mass Arbitrations will be delayed by this bellwether process. Any remaining Mass Arbitrations shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 7(I).
A single arbitrator will preside over each Mass Arbitration chosen for a bellwether proceeding, and only one Mass Arbitration may be assigned to each arbitrator as part of the bellwether process unless the parties agree otherwise.
Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Mass Arbitrations, with the mediator’s fee paid for by Nintendo. Counsel for the claimants and the other party must agree on a mediator within thirty (30) days after the conclusion of the final initial bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
Second Bellwether: If the mediation process concludes with any Mass Arbitrations remaining unresolved, the arbitrator will randomly select 35 Mass Arbitrations (or the total remaining Mass Arbitrations if fewer than 35) to proceed in arbitration as a second bellwether process. The arbitrator will randomly select for inclusion in the second bellwether process eligible Claims from claimants who have provided compliant Claimant Notices, and only those selected Claims will be deemed filed with the arbitration provider. A single arbitrator will preside over each Mass Arbitration chosen for a bellwether proceeding, and only one Mass Arbitration may be assigned to each arbitrator as part of the bellwether process unless the parties agree otherwise.
Second Mediation: Once the arbitrations that are part of the second bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Mass Arbitrations, if any, with the mediator’s fee paid for by Nintendo. Counsel for the claimants and the other party must agree on a mediator within thirty (30) days after the conclusion of the final second bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
Remaining Claims: If the mediation process set forth in the immediately preceding paragraph regarding the second mediation concludes with 100 or more Mass Arbitrations remaining unresolved, any party to the remaining Mass Arbitrations may elect to no longer have the arbitration requirement in this Section 7 apply to Mass Arbitrations for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether proceedings. To be effective, such an election must be communicated in writing (email suffices) to counsel for the opposing party within thirty (30) days of the mediation concluding. Such Mass Arbitrations released from the arbitration requirement must be resolved in accordance with Section 10.
If Mass Arbitrations released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Mass Arbitrations for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.
If the mediation process concludes with fewer than 100 Mass Arbitrations remaining or if no party makes a timely election as provided for in the preceding paragraph, the arbitrator will randomly select 35 Mass Arbitrations (or the total remaining Mass Arbitrations if fewer than 35) to proceed in arbitration as a batch. The arbitrator will randomly select for inclusion in the batch eligible Claims from claimants who have provided compliant Claimant Notices, and only those selected Claims will be deemed filed with the arbitration provider. A single arbitrator will preside over each Mass Arbitration chosen for the batch, and only one Mass Arbitration may be assigned to each arbitrator as part of the batch unless the parties agree otherwise. Once all arbitrations in the foregoing process are complete, the parties will repeat the batch process in this paragraph until all remaining Mass Arbitrations have been arbitrated.
Courts will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
- 30-Day Right to Opt Out. You have the right to opt out of the arbitration requirement in this Section 7 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 purchasing the Nintendo video game console. Such notice must include the name of each person opting out and contact information for each such person, the serial number of the applicable Console(s), and, if applicable, your purchase receipt. If you send timely written notice containing the required information, then the arbitration requirement in this Section 7 will not apply to you or Nintendo and the parties will settle any Claims on an individual basis in accordance with Section 10. If you do not send such notice, then you agree to be bound by the arbitration requirement in this Section 7.
- Enforcement.
If any part of this Agreement is held to be invalid or unenforceable, that part will no longer apply to the parties but all other parts of the Agreement will remain in effect unless otherwise provided in this Agreement. If we do not enforce any provision of this Agreement, that will not be considered a waiver of our rights. Any waiver of this Agreement must be obtained in a written document signed by an authorized representative of Nintendo.
- Governing Law.
This Agreement and all Claims – including any claims Nintendo has that you have violated its intellectual property rights – shall be subject to and governed by, construed, and interpreted in accordance with the laws of the State of Washington, U.S.A., except for its conflict of law rules.
- Venue.
All Claims not subject to arbitration pursuant to Section 7 and that cannot be heard in small claims court will be resolved exclusively in the state and federal courts located in King County, Washington, U.S.A. You and Nintendo waive any objection to venue in the courts identified in this Section 10.
- Third-Party Rights.
Except as expressly stipulated by this Agreement, this Agreement does not confer, and is not intended to confer, any right on any person, existing now or in the future, who is not a party to this Agreement.
- Additional Terms.
By entering into this Agreement, you also agree to the following Additional Terms:
- Nintendo of America Community Guidelines
- Health & Safety Precautions
- Community Tournament Guidelines
- Nintendo Game Content Guidelines for Online Video & Image Sharing Platforms
If you create or use a Nintendo Account, you also agree to the following Additional Terms:
