If you are under the age of 18 STOP! You must get your parent or legal guardian to read and accept this Agreement. By using the Application, your parent or legal guardian agrees to this End User License Agreement and they are responsible for your use and any issues or claims related to the Application.

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 or are under the age of 18 (or the age of majority where you live) and do not have a parent or legal guardian’s agreement to this Agreement, do not install or use the Application.

If you are 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. By installing or using the Application, 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 installing or using the Application, you acknowledge and agree that you are responsible for any use of the Application, including any use of the Application by other users including minor children, and are responsible for ensuring that all other users of the Application comply with the terms of this Agreement and any other applicable terms.

Our Privacy Policy explains how we use and protect your personal information when you use the Application. By using the Application you acknowledge that you have read our Privacy Policy.

NOTE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 18 THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, REQUIRES BOTH YOU AND NINTENDO TO RESOLVE MOST "CLAIMS" (AS DEFINED IN SECTION 18) 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 THE BINDING ARBITRATION BY FOLLOWING THE PROCEDURE IN SECTION 18(J).

1. Definitions

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 have the option of creating a Nintendo Account and linking it to the Application. 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, operating systems, connection services, or service plans. Mobile technology evolves during the expected lifespan of the Application, and continued compatibility with previously compatible devices, operating systems, connection services, or service plans is not guaranteed. Not all Application features are available to all customers. Availability may depend on a customer’s location, device type, operating system, 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.

3.6　 By accepting this Agreement, you also agree to adhere to the Nintendo Game Content Guidelines for Online Video & Image Sharing Platforms.

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. Without limitation, you agree that you may not (a) publish, copy, modify, adapt, translate, reverse engineer, lease, rent, decompile, disassemble, distribute, offer for sale, or create derivative works of all or a portion of the Application; (b) bypass, modify, decrypt, defeat, tamper with, or otherwise circumvent any of the functions or protections of the Application, including through the use of any hardware or software that would cause the Application to operation other than in accordance with its documented and intended use; (c) obtain, install or use any unauthorized copies of the Application; or (d) exploit the Application in any manner other than to use it in accordance with the applicable documentation and intended use on authorized devices, in each case, 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 9) 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 Community Guidelines (as set forth in Section 10).

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. Open Source Software

The Application may contain software licensed under the terms of open source licenses. Information regarding open source software included in the Application, including the licenses under which such open source software is distributed, can be found at nintendo.co.jp/support/oss.

8. Linked Services

8.1 　 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.

8.2 　 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.

8.3　 You must comply with the terms and conditions applicable to Linked Services.

8.4 　 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 may lose access to all or a portion of the Application’s save data, including but not limited to Digital Items.

9. Intellectual Property Rights

9.1　 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”).

9.2　 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.

10. Community Guidelines

You agree that you will adhere to Nintendo’s Community Guidelines.

11. Customer Responsibility

You agree to indemnify Nintendo and its partners from and against any loss or damage resulting from your, and any other user’s, wrongful use of the Application or any other breach of this Agreement.

12. 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, OR ANY OTHER USER’S, 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.

13. Updates to the Application and Service Availability

13.1　 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.

13.2　 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.

13.3　 WITHOUT LIMITING SECTION 12, 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, OR ANY OTHER USER, ARE NOT ABLE TO USE OR HAVE DIFFICULTY USING, IN WHOLE OR IN PART, DUE TO ANY SERVICE INTERRUPTION.

14. 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.

15. Termination of This Agreement; Remedies for Violation

15.1　 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.

15.2　 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 Community Guidelines set forth in Section 10. 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.

16. 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.

17. Severability

If any part of this Agreement is determined to be unlawful, void or for any reason unenforceable, then that part will be severed from this Agreement and the remainder of the Agreement will remain intact. Without limiting the previous sentence, if the law in your jurisdiction limits the applicability to you of any provision of this Agreement, such provision shall remain applicable to you to the fullest extent permitted by applicable law.

18. 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 18(J) IF YOU WISH TO OPT OUT OF THE REQUIREMENT TO ARBITRATE ON AN INDIVIDUAL BASIS.

A. Claims Subject to this Section. This Section 18 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 or Claims related to the validity, enforceability, or scope of the arbitration provision or any portion of it.

B. Customer Service Resolution. Our Contact Center is available to address any concerns you may have regarding the Application. 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.

C. Required Informal Dispute Resolution. Except as permitted under Section 18(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 18(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 18, 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 18(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.

D. 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 18(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.

E. Binding Individual Arbitration. Subject to the terms of this Section 18(E), a Claim not excluded under Section 18(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 Application 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 18 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 18(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 18 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 19.

F. Arbitration Fees. Except for the circumstances outlined in Section 18(G) and for Mass Arbitrations (as defined in Section 18(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.

G. 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.

H. 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.

I. 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 18(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 18 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 19.

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.

J. 30-Day Right to Opt Out. You have the right to opt out of the arbitration requirement in this Section 18 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 the date on which you have first agreed to be bound by this Agreement pursuant to its terms. You must link the Application to your Nintendo Account prior to opting out. Such notice must include the name of each person opting out, contact information for each such person, and the email address registered to your Nintendo Account. If you send timely written notice containing the required information, then the arbitration requirement in this Section 18 will not apply to you or Nintendo and the parties will settle any Claims on an individual basis in accordance with Section 19. If you do not send such notice, then you agree to be bound by the arbitration requirement in this Section 18.

19. Applicable Law and Jurisdiction

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.

All Claims not subject to arbitration pursuant to Section 18 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 19.

20. Contact Information

If you wish to contact Nintendo concerning the Application, you must fill out and send the inquiry form on the FAQ page or such other method provided by Nintendo.

21. Third-Party Rights

You acknowledge and agree that Nintendo of America Inc. is an intended third-party beneficiary entitled to enforce any rights of Nintendo set forth in this Agreement. Except for the foregoing and as may otherwise be 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.

Customers Using Apple Devices
This Section applies to users who use the Application on smart device operating systems provided by Apple, Inc. (hereinafter "Apple"). In the event of conflict between this Section and the Agreement, this Section shall apply.

1. You acknowledge that this Agreement is concluded solely between you and Nintendo, and not with Apple. Nintendo, not Apple, is solely responsible for the Application and the content thereof.
2. In addition to other restrictions stated in this Agreement, the license Nintendo grants you to the Application downloaded from Apple is non-transferable and may only be exercised to download and use the Application on Apple-branded products that you own or control and only as permitted by the usage rules set forth in the Apple Media Services Terms and Conditions. The Application downloaded from Apple may, however, be accessed and used by other accounts associated with yours via family sharing or volume purchasing.
3. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the Application. In the event of any failure of the Application downloaded from Apple to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the Application by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Nintendo. However, Nintendo has disclaimed all warranties of any kind with respect to the Application, and therefore, there are no warranties applicable to the Application.
4. 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, privacy, or similar legislation; and

(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.

5. Maintenance and Support. Nintendo is solely responsible for providing any maintenance and support services with respect to the Application, as specified in this Agreement and as required under applicable law. You acknowledge and agree that Apple has no responsibility whatsoever to provide any maintenance or support services for the Application.
6. The Application is provided by Nintendo Co., Ltd., headquartered at 11-1 Hokotate-cho, Kamitoba, Minami-ku, Kyoto 601-8501, Japan. Please see Section 20 of this Agreement for contact information concerning the Application.
7. You represent and warrant that you are not located 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 any U.S. Government list of prohibited or restricted parties.
8. 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 (and will be deemed to have accepted the right) to enforce this Agreement against you as third-party beneficiary.