This agreement is between you and Nintendo and covers use of the Nintendo DSi and the Nintendo DSi System. Nintendo may also be referred to as "we" or "us.".

NINTENDO DSi SERVICES USER AGREEMENT

Last updated: April 5, 2009

Chapter I: Nintendo DSi Service

Article 1: Grant of License

    Nintendo grants you a personal, limited, non-exclusive, revocable (in whole or in part) license to use the Nintendo DSi Service, pursuant to this agreement. Specifically:

  • Although the Nintendo DSi is intended for your personal recreational use, you are responsible for anyone using the Nintendo DSi through your Nintendo DSi System (whether you gave them permission or not), and for ensuring they understand and agree to this agreement.
  • You may not use the Nintendo DSi for commercial or illegal purposes, in a way that may harm another person or company, or in any unauthorized or improper manner as we may specify from time to time in this agreement, our Nintendo DSi Code of Conduct, or otherwise.
  • You must clear all Content, Third-Party Data, and any other sensitive or personal information stored on your Nintendo DSi System prior to selling or otherwise transferring your Nintendo DSi System. If you acquire a used Nintendo DSi System, you must clear, and may not use, any of this data if still on the Nintendo DSi System when you acquire it.
  • The Nintendo DSi is licensed to you for use on your Nintendo DSi System only in the United States, Canada, or Latin America.

Chapter II: Unauthorized Software, Services, or Devices or Unlicensed Accessories

    Your Nintendo DSi System and the Nintendo DSi are not designed for use with unauthorized software, services, or devices or non-licensed accessories, and you may not use any of these with your Nintendo DSi System or the Nintendo DSi Service. Such use may be illegal, voids any warranty, and is a breach of this agreement. Such use may also lead to injury to you or others or cause performance issues or damage to your Nintendo DSi System or the Nintendo DSi Service. We (and our licensees and distributors) are not responsible for damage or loss caused by unauthorized software, services or devices or non-licensed accessories. We may take steps to disable any unauthorized software, services or device installed in your Nintendo DSi System, for example, by detecting and disabling them through the Nintendo DSi and/or game software. If we detect unauthorized software, services, or devices, your access to the Nintendo DSi may be disabled and/or the Nintendo DSi System or games may be unplayable.

Chapter III: Updates/Changes

    You understand that the Nintendo DSi System specifications and the Nintendo DSi are constantly evolving and that we may update or change your Nintendo DSi System or the Nintendo DSi in whole or in part, without notice to you. Such updates may be required for you to play new Nintendo DSi games or continue to access the Nintendo DSi Service. We may also upgrade, change, or terminate the Content or game software or may discontinue offering Products without notice to you.

Chapter IV: Nintendo DSi Shop

Article 1: Nintendo DSi Shop Account

    You must create a Nintendo DSi Shop Account to use the Nintendo DSi Shop. A Nintendo DSi Shop Account is personal to you. You are responsible for monitoring use of, and limiting access to, your Nintendo DSi Shop Account and for anyone using your Nintendo DSi Shop Account, even without your permission.

Article 2: Points

    The Nintendo DSi Shop allows you to use Points to download a license to use Content or purchase Products (and may also allow you to do such things as download licenses to use certain Content for free, or use your Points to send Content to a friend). Points are not your personal property. Points have no cash or monetary value and are non-refundable.

    Once you place Points into your Nintendo DSi Shop Account, you may not withdraw, sell, or transfer them to another. You are responsible for your or anyone else's use of Points in your Nintendo DSi Shop Account, even if you did not give them permission to use those Points.

    If we suspect fraudulent or unlawful activity concerning your Nintendo DSi Shop Account or your use of Points, we may cancel, suspend, or otherwise limit your access to all or part of the Nintendo DSi Service. If, as a result, your Nintendo DSi Shop Account or your Points are deleted, they will be reinstated at our sole discretion.

Article 3: Credit-Card Charges and Your Billing Account

    You may use your credit card to purchase Points through the Nintendo DSi Shop. If you use a credit card, you represent that you are authorized to do so and you agree that you are responsible for all charges to that credit card. Unless otherwise required by law, charges to the credit card to purchase Points are nonrefundable. It is your responsibility to pay any taxes, import fees or other government assessments associated with your Points purchases or download of Content and/or Products.

Article 4: Account History

    Each time you purchase Points through the Nintendo DSi Shop, and each time you use Points to license Content or purchase Products, the transaction will be reflected in your account history. Account-history information for each transaction will be available for at least one year through the Nintendo DSi Shop.

Chapter V: Nintendo Zone Information

You agree that we or our selected partners may provide you commercial information on your Nintendo DSi System at Nintendo Zones. When your Nintendo DSi System is turned on and you are close to a Nintendo Zone, your Nintendo DSi System will receive an alert that it is near a Nintendo Zone. A Nintendo Zone notice will be displayed on your Nintendo DSi System. By clicking on the notice, you choose to access online commercial information. If you do not want to receive such information, do not click on the notice.

Chapter VI: Third-Party Data

We are not responsible for any Third-Party Data or for any action you may take relating thereto (including but not limited to modifying, distributing, or posting Third-Party Data). All Third-Party Data is the sole responsibility of the creator or sender of that Third-Party Data. Although we may choose to do so, we are not obligated to monitor, supervise, store, or maintain Third-Party Data or respond to complaints relating to Third-Party Data.

If legally permitted, we may access, use, and disclose any Third-Party Data in order to protect our rights or property, to protect other users of the Nintendo DSi Service, or to comply with legal requirements such as a lawful subpoena. You understand that you have no expectation of privacy in any Third-Party Data you receive or transmit via the Nintendo DSi Service.

Chapter VII: Other

Article 1: Third-Party Providers

    We may use third parties to provide any portion of the Nintendo DSi Service. We may offer third party services or material to you (including Content and Products) through the Nintendo DSi Service, so you may use Points to purchase from us a license to use such Content or to get Product. We may also allow third parties to directly provide Third-Party Data to you through the Nintendo DSi Service.

Article 2: Intellectual Property

    We own all right, title and interest in, or have the right to distribute, use or sublicense, the Nintendo DSi and the Nintendo IP. We do not provide you with any interest in the Nintendo DSi or the Nintendo IP. Except as expressly authorized by us in writing, you may not create works based on the Nintendo DSi or the Nintendo IP or modify, distribute, or transmit the Nintendo IP. If you do not abide by these requirements, Nintendo shall own all right, title, and interest in any works created, adapted, distributed, or transmitted via the Nintendo DSi Service, or, in the alternative, an unlimited license thereto.

    We respect the intellectual property of others. If you believe that any material within the Nintendo DSi System infringes upon any intellectual property right which you own or control, you may file a notice of such infringement with us, as provided in Article 15. Our entire Intellectual Property Policy may be viewed at www.nintendo.com/ippolicy.

Article 3: Hosting, Intercepting, Emulating, and Reverse-Engineering Prohibited

    You may not host, intercept, emulate, or reverse engineer any part of the Nintendo DSi System or the Nintendo DSi Service.

Article 4: Parental Controls Function

    You may limit access to certain features of the Nintendo DSi System and the Nintendo DSi through our parental controls function; however, you are responsible for any features or material that anyone accesses through your Nintendo DSi System even if you use the parental controls function.

Article 5: Code of Conduct

    Your use of the Nintendo DSi is subject to the Nintendo DSi Code of Conduct, which prohibits all harmful, illegal or otherwise offensive conduct. The most current version of the Nintendo DSi Code of Conduct, which may be revised by us from time to time, is posted at http://support.nintendo.com. You may also contact our -department, and we will mail you the current version, free of charge.

Article 6: Submissions

    Please do not send us any creative or original materials such as ideas for toys, games, or other products, or any creative suggestions, ideas, notes, drawings, concepts, or other information through the Nintendo DSi or otherwise. Any unsolicited submissions become our sole and exclusive property and may be used by us with no obligation of confidentiality, payment, or attribution.

Article 7: Protection of Personal Information

    We are committed to protecting the privacy and security of your personal information. Your use of the Nintendo DSi is subject to the Nintendo DSi Privacy Policy, which applies to information submitted or collected through the Nintendo DSi Service. The most current version of the Nintendo DSi Privacy Policy, which may be revised by us from time to time, is posted at http://support.nintendo.com. You may also contact our -department, and we will mail you the current version, free of charge.

Article 8: Warranties

    ALTHOUGH WE STAND BEHIND OUR SERVICE, CONTENT AND PRODUCTS, WE AND OUR LICENSEES, LICENSORS AND SUPPLIERS ARE PROVIDING THE NINTENDO DSi "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE), TO THE MAXIMUM EXTENT PERMITTED BY LAW. USE OF THE NINTENDO DSi IS AT YOUR SOLE RISK. THIS MEANS, FOR EXAMPLE, THAT WE DO NOT GUARANTEE THAT THE NINTENDO DSi WILL ALWAYS WORK PROPERLY. THIS ALSO MEANS WE DO NOT GUARANTEE THAT THE NINTENDO DSi SERVICE, CONTENT OR PRODUCTS WILL BE FREE FROM VIRUSES, HACKS, OR OTHER POTENTIALLY HARMFUL INTRUSIONS. PLEASE NOTE THAT SOME STATES DO NOT ALLOW SUCH WARRANTY LIMITATIONS, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. PLEASE SEE THE NINTENDO DSi OPERATIONS MANUAL FOR ANY WARRANTIES THAT APPLY TO THE NINTENDO DSi SYSTEM.

Article 9: Limitation on Claims

    If you think you have a claim against us related to the Nintendo DSi System or the Nintendo DSi Service, you must take legal action within one year after the date of the alleged incident. After the one-year period expires, you may never raise that claim.

Article 10: Change, Suspension or Discontinuance of Nintendo DSi Service

    We may change, suspend, or discontinue the Nintendo DSi Service, or any feature or aspect of the Nintendo DSi Service, at any time, with or without notice to you, and without liability to us. This includes, but is not limited to, the availability of all or any portion of the Nintendo DSi Service, Content, Products, Points, and the number of Points required to redeem particular Content or Products.

Article 11: Limited Responsibilities and Indemnification

    You agree to waive any and all rights to claim damages or losses caused to you or relating to your inability to use the Nintendo DSi (or to anyone else using the Nintendo DSi through your Nintendo DSi System). You understand you might never be fully compensated for that damage or loss if we or one of our licensees, licensors or suppliers (collectively referred to in this Article 11 as "we" or "us") somehow harm you. This is because we limit our liability to you (and to others) in several ways:

  • Your ability to recover damages or losses from us is limited: you may recover only direct damages, up to the total amount you have ever paid for Points. Generally, direct damages are losses you (or anyone else) suffer as the immediate result of something someone has done wrong.
  • You may not recover any other types of damages, no matter the reason. For example, sometimes a court will award a special amount of damages to punish the person at fault, or a person might have to pay for damages where the person did not directly cause harm. You agree that we will never have to pay punitive, special, consequential, or incidental damages to you.
  • We are also not liable to anyone else or for the actions or inactions of anyone else. For example, if your friend is somehow harmed using the Nintendo DSi or the Nintendo DSi System, we are not responsible to you, your friend, or anyone else. If another person somehow harms you while using your Nintendo DSi System or Nintendo DSi Service, we are not liable to you for that other person's actions.
  • These limitations on liability apply to all matters relating to the Nintendo DSi and the Nintendo DSi System, including your use of the Nintendo DSi and your use of Content or Products that do not specify other limitations on liability. These limitations also apply to any legal or equitable theory, including but not limited to breach of contract, breach of warranty, strict liability, negligence, or other tort. Please note, however, that some states or provinces do not permit certain limitations like these, so these limits on other damages may not fully apply to you.

    If you breach this agreement, and we or another company or person is harmed by your breach, then you must indemnify us (and our licensees, licensors, and suppliers and any of our employees) from all of the losses and costs related to your breach, including our attorneys fees. You must also indemnify us for any claims relating to Third-Party Data modified, created, or sent by you.

Article 12: Expiration and Termination of Agreement

  • You may cancel your Nintendo DSi Shop Account by contacting our -department or by following the instructions in the Nintendo DSi Shop. If your Nintendo DSi Shop Account is canceled or terminated for any reason, you will no longer be able to use the Nintendo DSi Shop. You will lose all downloaded Content and forfeit any rights to any unused Points, which become our property.
  • You may terminate this agreement by removing Content from your Nintendo DSi System, discontinuing use of the Nintendo DSi Service, and forfeiting any rights to Points in your Nintendo DSi Shop Account, which become our property.
  • We may terminate this agreement, or any portion thereof, at any time, for any reason whatsoever. Such termination will void any licenses granted in accordance with this agreement and may prevent your use of the Nintendo DSi Service.
  • We have no obligation to return or refund Points to you, even if the agreement ends.
  • In the event this agreement is terminated or canceled, the following sections will remain in effect: Unauthorized Software, Services or Devices or Unlicensed Accessories; Credit-Card Charges and Your Billing Account; Intellectual Property; Hosting, Emulating, Intercepting, and Reverse-Engineering Prohibited; Submissions; Warranties; Limitation on Claims; Limited Responsibilities and Indemnification; Expiration and Termination of this Agreement; Governing Law and Legal Jurisdiction; and Agreement Interpretation.

Article 13: Current Agreement and Update

    We may change the terms and conditions of this agreement, the Nintendo DSi Code of Conduct, or the Nintendo DSi Privacy Policy, at any time. A current version of this agreement will be available on the Internet at http://support.nintendo.com. If you do not have Internet access, you may contact our -department, and we will mail you a current version of this agreement, free of charge. We will post notice on http://support.nintendo.com if the agreement is changed at least 5 days before the changes become legally binding. If you do not agree to these changes, you must cancel your Nintendo DSi in accordance with this agreement. If you do not have Internet access, you should periodically contact our department and ask whether there have been any changes to the agreement since the last version you obtained.

Article 14: Sale, Transfer and Assignment Prohibited

    You may not assign all or any part of this agreement or sell or transfer any Content or your Nintendo DSi Shop Account to any third party. Any attempt by you to do so is void.

Article 15: Service/Notices

    To contact our -department regarding this agreement, you may: (i) send an email to useragreement@noa.nintendo.com; (ii) send a letter to Nintendo of America Inc., Attn: User Agreement, 4820 150th Ave NE, Redmond, WA 98052; or (iii) call, toll free, 1-888-977-7627.

    For all legal matters, such as to file a claim against us or to notify us of an alleged infringement, you must contact or notify us in writing at: Nintendo of America Inc., Attn: General Counsel, 4820 150th Ave NE, Redmond, WA 98052.

Article 16: Governing Law, Legal Jurisdiction, and Interpretation of Agreement

    This agreement and any claims arising under it is governed by the laws of the state of Washington, without reference to conflict of laws principles. If you want to sue us with respect to a claim related to this agreement, your lawsuit must be brought in King County, Washington, and you consent to the jurisdiction of courts located there. You agree that if any part of this agreement is determined to be invalid or unenforceable, that part will no longer apply and will be considered deleted from the agreement, but all other parts of the agreement will remain in effect. You further agree that we may replace the invalid part by a provision which reflects or comes closest to reflecting the initial intention. If we choose not to enforce a provision of the agreement, you agree that we are not waiving our right to do so in the future.

Article 17: Definitions

    "Content" means the software, services, material and other data which we own or have the right to use, distribute or sublicense, and which we send to, or make available as a download through, the Nintendo DSi System or the Nintendo DSi Service.

    "Nintendo IP" means all intellectual property, including but not limited to trademarks, copyrights, moral rights, inventions, patents, trade secrets, know-how and other confidential and proprietary information which we developed, own or have a license to use.

    "Nintendo IP" means all intellectual property, including but not limited to trademarks, copyrights, moral rights, inventions, patents, trade secrets, know-how and other confidential and proprietary information which we developed, own or have a license to use.

    "Nintendo Zone" means a hotspot or download station that allows you to access Content, Third-Party Data, and other services.

    "Points" means the points that you purchase from us through the Nintendo DSi Shop or through points cards sold or distributed by us or our retailers and promotional partners and that you may exchange with us for a license to download Content or to purchase Products.

    "Products" means any goods other than Content that are made available for purchase from us through the Nintendo DSi Shop.

    "Third-Party Data" means Content or other software, services, material, messages (including commercial and non-commercial messages), links to Internet sites, and other data either created by, or sent to, your Nintendo DSi System through the Nintendo DSi by any non-Nintendo entity or person (including you).

    "Nintendo DSi Service" means the whereby we can distribute Content, messages (including commercial and non-commercial messages) and other data to your Nintendo DSi System, or link you to an Internet site, and whereby you can send and receive Content, messages (including commercial and non-commercial messages), and other data, including Third-Party Data, using your Nintendo DSi System. The "Nintendo DSi Service" includes, but is not limited to, the Nintendo DSi Shop and Nintendo Zones.

    "Nintendo DSi Shop Account" means an account on your Nintendo DSi System which you set up and use in connection with the Nintendo DSi Shop.

    "Nintendo DSi Shop" means our online Nintendo DSi System's store, which offers such things as Points, Content, Products, and a download service, all of which Nintendo directly or indirectly operates.

    "Nintendo DSi System" means the handheld device (including imbedded software and accessories) sold and marketed by Nintendo under the Nintendo DSi brand, including any succeeding devices and compatible devices.