THESE ARE IMPORTANT TERMS THAT APPLY TO YOUR USE OF THE SHOPPING SERVICES!
If you are under the age of 18 (or the age of majority where you live), STOP! You must get your parent or legal guardian to read and accept these Terms on your behalf. By using the Shopping Services, your parent or legal guardian agrees to these Terms and they are responsible for your use and any issues or claims related to the Shopping Services.
Purchase and Subscription Terms
Last Updated: 08/2026
These Purchase and Subscription Terms (the “Terms”) apply to any shopping services made available to you by Nintendo that include a link to these Terms (the “Shopping Services”).
NOTE: FOR RESIDENTS OF CERTAIN JURISDICTIONS, THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 12 THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 12, REQUIRES BOTH YOU AND NINTENDO TO RESOLVE MOST "CLAIMS" (AS DEFINED IN SECTION 12) 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 12(J).
These Terms are by and among you, Nintendo Co., Ltd., located in Kyoto, Japan, and Nintendo of America Inc., located in Redmond, WA, USA, unless you live in Canada. If you live in Canada, these Terms are by and among you, Nintendo Co., Ltd., and Nintendo of Canada Ltd., located in Vancouver, B.C., Canada. Nintendo Co., Ltd., Nintendo of America Inc., and Nintendo of Canada Ltd. are collectively referred to as “Nintendo” or “we,” as applicable.
By using the Shopping Services you agree to be bound by these Terms. Additional terms and requirements may apply.
1. Pricing
The prices for the products, software, content, and services (“Products”) made available by Nintendo through the Shopping Services will be listed at the time of purchase, or with respect to Subscriptions at the time of enrollment, which may vary by country. The same Products may be listed for a different price by third party retailers. Some Products may be available for pre-purchase. Pricing and availability may change without notice, except with respect to Subscriptions as set forth in Section 5.
Although we attempt to provide accurate information, there may be times where information, such as pricing, is incorrect or out of date. We may attempt to contact you to remedy the error or to cancel your order if your payment card or method has not been charged yet.
2. Ordering and Payment
We may make various payment processing methods available to you for your purchases through the Shopping Services. You are responsible for complying with any applicable terms and conditions, whether with Nintendo or a third party provider, which apply to the use of your selected payment processing method. Nintendo may add, remove, or change payment processing methods without notice.
For each purchase, you represent that you are authorized to use the form of payment provided to Nintendo and that any payment information that you provide is accurate.
When you place an order through the Shopping Services, you authorize Nintendo to charge your selected payment card or method in the total amount of your order (including any applicable taxes). From time to time, we may receive updated information from your issuing bank or applicable payment service provider about any payment card or method you have stored in your Nintendo Account (or, in the case of an existing Subscription, the payment card or method you provided to us at the time you signed up for such Subscription), if applicable, and you hereby authorize Nintendo to use such updated information to charge (or, in the case of an existing Subscription, to continue to charge) such payment card or method. Applicable tax will be calculated and applied at the time your payment card or method is charged.
The total amount due for payments submitted with a non-US credit card, if permitted by Nintendo, may depend upon applicable foreign exchange rates, taxes, and fees applied by your bank or your credit card issuer. You are solely responsible for all fees and taxes associated with all purchases that you make through the Shopping Services.
Payments for Products may be refundable as required by applicable law, and some Products may be returned or exchanged. For details on our refund policies, please refer here.
Nintendo reserves the right to reject your order for any reason.
3. Risk of Loss
Risk of loss or damage for digital Products will transfer to you upon electronic transmission of the Product to you. Risk of loss or damage for physical Products will transfer to you upon delivery of the Product to the shipping carrier.
4. Rights and Restrictions
Some Products, such as software and digital content, are licensed, not sold, to you pursuant to the limited license in Section 2 of the Nintendo Account User Agreement, and your license to use these Products will immediately terminate if you violate such agreement.
Nintendo may impose a limit on the quantity of a particular Product that you may purchase. Restrictions may apply with respect to your access to and use of the same Products on multiple devices.
Products are for personal use and may not be resold for commercial purposes.
5. Subscriptions
a. Overview. If you purchase, or commence a free trial for, a Nintendo Switch Online membership (a “Membership”), or any other Products made available by Nintendo via a subscription (a “Pass”), the terms included in this Section 5 also apply to you. Passes and Memberships are each referred to as a “Subscription” in these Terms.
As part of your Subscription, you may obtain access to certain services, software and content available to subscribers (the “Features”). These Features are licensed, not sold, to you pursuant to the limited license in Section 2 of the Nintendo Account User Agreement and your license to use these Features will expire at the end of your Subscription term, or immediately terminate if you violate such agreement.
There may be a limit to the number of Subscriptions you can have at one time. Once you have reached the Subscription limit, you will be prevented from purchasing or redeeming additional Subscriptions via the Shopping Services. Please visit support.nintendo.com/switch/online for further information on Subscription limits.
Subscriptions are tied to your Nintendo Account and are non-transferable. Subscriptions and Features may not be available in all territories, and certain Features may not be compatible with all Products.
b. Automatic Renewals and Payments. IF AUTOMATIC RENEWAL IS SET, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE CURRENT SUBSCRIPTION TERM FOR SUCCESSIVE PERIODS MATCHING THE AUTOMATIC RENEWAL TERM AT THE THEN-CURRENT PRICE, PLUS APPLICABLE TAXES (“SUBSCRIPTION AMOUNT”), AND THE SUBSCRIPTION AMOUNT WILL BE DEDUCTED FROM YOUR NINTENDO ACCOUNT FUNDS NO SOONER THAN 48 HOURS BEFORE YOUR SUBSCRIPTION IS SET TO EXPIRE, UNLESS AND UNTIL YOU TURN OFF AUTOMATIC RENEWAL. If you do not have sufficient funds in your Nintendo Account, you authorize Nintendo to charge the Subscription Amount to the payment method you provide at the time you sign up for a Subscription or to the payment method you store in your Nintendo Account (“Payment Method”). Your Subscription may be terminated by Nintendo if you have insufficient funds and no Payment Method has been set for automatic renewal on the date a payment is due or if payment is unsuccessful for any other reason. If you already have an automatically renewing Subscription and purchase another Subscription for the same service on Nintendo eShop but with different term and price, the term and price for the renewal will match the term and the Subscription Amount of the Subscription that was purchased last.
YOU CAN TURN OFF AUTOMATIC RENEWAL AT ANY TIME UP TO 48 HOURS BEFORE THE END OF THE THEN-CURRENT PERIOD TO AVOID THE RENEWAL OF YOUR SUBSCRIPTION AND BILLING OF THE SUBSCRIPTION AMOUNT. When you turn off automatic renewal, your Subscription will remain active until the end of its term, and you will not receive any refunds or credits for the remaining time left on your Subscription. Any data (including backed-up game save data) associated with your Subscription may be deleted by Nintendo at any time following expiration or termination of the Subscription for any reason.
c. Free Trials. Your Subscription may start with a free trial period (a “Free Trial”), and except as otherwise specifically noted these Terms shall apply to such Free Trial. Restrictions may apply to the availability of Free Trials (for example, you may not sign up for a Free Trial concurrently with an active full Subscription, and you may not be able to sign up for a Free Trial if you have previously signed up for a Free Trial), and certain Features and benefits of full Subscriptions may not be available or may be limited during the Free Trial.
DEPENDING ON THE TERRITORY ASSOCIATED WITH YOUR NINTENDO ACCOUNT, YOUR FREE TRIAL MAY AUTOMATICALLY CONVERT INTO A FULL SUBSCRIPTION AT THE END OF THE FREE TRIAL PERIOD, UNLESS YOU TURN OFF AUTOMATIC RENEWAL BEFORE THE END OF THE FREE TRIAL. Upon conversion of your Free Trial to a Subscription, and on an ongoing basis thereafter, we will charge you the Subscription Amount unless and until you turn off automatic renewal as described in Section 5(b) of these Terms.
d. Additional Terms. We reserve the right to adjust Subscription pricing, and to change, suspend, or discontinue any Subscriptions, including any Free Trial and any Features, at any time in our sole discretion. Any price changes or other material changes to the Subscriptions or the Features will be communicated to you. Your continued use of the Subscriptions following notification of any modifications or changes constitutes acceptance of those changes. We may also impose limits on certain Features or restrict your access to parts or all of your Subscriptions without notice or liability. To the extent that you have a Nintendo Account, these Terms are a part of and incorporated by reference in your Nintendo Account User Agreement.
6. Service Availability and Performance
We strive to keep the Shopping Services and applicable Products 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 certain Shopping Services or Products. In addition, you acknowledge that certain Shopping Services and Products require an internet connection, and the performance of these Shopping Services and Products may depend upon the quality and stability of your internet connection. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NINTENDO DOES NOT MAKE ANY GUARANTEE OR WARRANTY WITH RESPECT TO THE AVAILABILITY OR PERFORMANCE OF THE SHOPPING SERVICES AND APPLICABLE PRODUCTS, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NINTENDO SPECIFICALLY DISCLAIMS ANY GUARANTEE OR WARRANTY THAT THE SHOPPING SERVICES AND APPLICABLE PRODUCTS 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 SHOPPING SERVICES OR APPLICABLE PRODUCTS THAT YOU ARE NOT ABLE TO USE OR HAVE DIFFICULTY USING, IN WHOLE OR IN PART, DUE TO ANY SERVICE INTERRUPTION.
7. Use of Information
Nintendo (including its subsidiaries and affiliates) may access, use, monitor, delete, disclose and/or preserve information associated with your use of the Shopping Services as is necessary, in Nintendo’s discretion, to (a) comply with applicable law, rules, regulations, or orders; (b) enforce these Terms or protect the rights of Nintendo, its users, or the public; (c) help prevent a loss of life or serious physical injury to anyone; (d) prevent potentially illegal or offensive activities; and (e) provide and/or improve features of the Shopping Services.
8. Privacy Policy
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 Shopping Services) as described in our Privacy Policy. This may include personally identifiable information as well as anonymous or aggregate information about your use of the Shopping Services. 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.
9. Intellectual Property Rights
Other than your right to use the Shopping Services as described in these Terms, and as between you and Nintendo, we retain and reserve all right, title, and interest in and to the Shopping Services, including without limitation, to all Nintendo Intellectual Property. "Nintendo Intellectual Property" means all registered and unregistered trademarks, service marks, logos, registered and unregistered designs, copyrights, database rights, inventions, patents, trade secrets, know-how, technological protection measures, and other confidential and proprietary information of Nintendo, including without limitation, all other proprietary or intellectual property rights of any kind in any country.
10. Indemnity
If Nintendo (including its subsidiaries and/or affiliates) is subject to any actual or threatened claims, costs, damages, losses, or other liabilities (collectively, "Covered Losses") as a result of your use of the Shopping Services, then you agree to indemnify us from all such Covered Losses and any related costs, such as reasonable attorneys’ fees.
Some jurisdictions limit consumer indemnities, so some or all of the indemnity provisions above may not apply to you. If you are obligated to indemnify us, we will have the right, in our sole discretion, to control any action or proceeding and determine whether we wish to settle it, and if so, on what terms.
11. Disclaimer of Warranties and Limitation of Liability
USE OF THE SHOPPING SERVICES IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NINTENDO OR ITS REPRESENTATIVES CREATES A WARRANTY. THE SHOPPING SERVICES ARE 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 SHOPPING SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE 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 ACCESS, USE, MISUSE, OR INABILITY TO USE THE SHOPPING SERVICES, 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 YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE SHOPPING SERVICES IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR THE SHOPPING SERVICES. IF AN APPLICABLE LAW RESTRICTS OUR ABILITY TO LIMIT LIABILITY OR DISCLAIM WARRANTIES, THE LIMITATIONS AND DISCLAIMERS LISTED ABOVE MAY NOT APPLY TO YOU. IN THAT CASE, WE LIMIT OUR LIABILITY AND DISCLAIM WARRANTIES TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
12. Dispute Resolution; Binding Arbitration; Class Action Waiver
THIS SECTION 12 DOES NOT APPLY TO YOU IF YOU LIVE IN ARGENTINA, BRAZIL, CHILE, COLOMBIA, MEXICO, PERU OR QUEBEC OR IF PROHIBITED UNDER APPLICABLE LAW IN YOUR JURISDICTION.
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 12(J) IF YOU WISH TO OPT OUT OF THE REQUIREMENT TO ARBITRATE ON AN INDIVIDUAL BASIS.
a. Claims Subject to this Section. This Section 12 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 these Terms, the Shopping Services or their use 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 Shopping Services. You may contact them by phone at 1-800-255-3700 or +001 (425) 558-7078 if you are outside the US or Canada; 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 12(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 these Terms.
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 12(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 12, 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 12(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 12(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 12(e), a Claim not excluded under Section 12(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 Shopping Services 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 these Terms (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 these Terms.
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 these Terms.
These Terms affect interstate commerce, and the enforceability of this Section 12 will be substantively and procedurally governed by the FAA to the extent permitted by applicable law. As limited by the FAA, these Terms, 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 12(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 these Terms.
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 12 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 14.
f. Arbitration Fees. Except for the circumstances outlined in Section 12(g) and for Mass Arbitrations (as defined in Section 12(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 these Terms. 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 these Terms permit 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 12(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 12 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 14.
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 12 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 these Terms pursuant to its terms. 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 have one. If you send timely written notice containing the required information, then the arbitration requirement in this Section 12 will not apply to you or Nintendo and the parties will settle any Claims on an individual basis in accordance with Section 14. If you do not send such notice, then you agree to be bound by the arbitration requirement in this Section 12.
13. Severability
If any part of these Terms is determined to be unlawful, void or for any reason unenforceable, then that part will be severed from these Terms and the remainder of these Terms will remain intact. Without limiting the previous sentence, if the law in your jurisdiction limits the applicability to you of any provision of these Terms, such provision shall remain applicable to you to the fullest extent permitted by applicable law. If we do not enforce any provision of these Terms, that will not be considered a waiver of our rights. Any waiver of these Terms must be in a written document signed by an authorized representative of Nintendo.
14. Governing Law; Venue
This Section 14 does not apply if you live in Argentina, Brazil, Chile, Colombia, Mexico, Peru or Quebec or if prohibited under applicable law in your jurisdiction. If you live in one of those jurisdictions, then the governing law and venue of that jurisdiction shall apply to these Terms and any claims related thereto.
These Terms 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 12 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 14.
15. Third-Party Rights
Except as expressly stipulated by these Terms, these Terms do not confer, and are not intended to confer, any right on any person, existing now or in the future, who is not a party to these Terms.