Nintendo 3DS Service User Agreement and Privacy Policy

Version: 05.2018

THE FOLLOWING IS AN IMPORTANT LEGAL AGREEMENT.

PLEASE SCROLL DOWN!

If you are under the age of 18, STOP! You must get your parent or legal guardian to read and accept the terms of this Agreement.

Select the “I Accept” button if you are 18 or over and accept the terms of this Agreement.

Select the “Later” button if you are over 18 and do not accept the terms of this Agreement.

This is a binding agreement between you, an individual, and Nintendo of Europe GmbH, Herriotstrasse 4, 60528 Frankfurt am Main, Germany, telephone number: +49 69 66 77 47 5412, email address: eShopService@nintendo.de, fax number: +49 69 667747 95412. In this agreement, Nintendo of Europe GmbH will be referred to as "Nintendo", "we" or "us".

Table of Contents

1. Nintendo 3DS Services: General Provisions

2. Specific Applications and Communication Methods

3. Privacy Policy

1. Nintendo 3DS Services: General Provisions

1.1. Subject Matter

The Nintendo 3DS Service User Agreement and Privacy Policy (this “Agreement”) covers your use of the “Nintendo 3DS Services” (as defined in Article 1.2. below).

1.2. Definitions

In this Agreement, the following terms shall have the following meanings:

“Active Mode” refers to the mode of your Nintendo 3DS System during normal operations (i.e. when your Nintendo 3DS System is not in Sleep Mode).

“Friend” refers to a user of another Nintendo console with whom you have established a friendship, either by exchanging friend cards using Local Wireless or by entering each other’s friend codes directly and then connecting to the internet.

“Funding Card” refers to prepaid cards sold or distributed by Nintendo or Nintendo’s promotional partners which contain funds to be transferred to your Shop Account.

“Local Wireless” refers to an electronic communication method allowing your Nintendo 3DS System to send data to and receive data from other Nintendo 3DS Systems within Local Wireless range of your Nintendo 3DS System and without using internet communication; excluding, however, StreetPass.

“Mii” refers to a customisable, electronic avatar that you can create and that you can use in compatible games, attach to messages and share with other persons through the Nintendo 3DS Services.

“Network Content” refers to all software, information, games, demo versions, material, data, messages, email and other content, whether commercial or non-commercial content, of Nintendo and third party partners of Nintendo which is provided and distributed in connection with the Nintendo 3DS Services, including downloadable Shopping Service Products; excluding, however, User-Generated Content and all commercial and non-commercial content provided on internet websites operated by third parties.

“Nintendo 3DS Services” refers to all network services provided by Nintendo over an internet connection or any other electronic communication method supported by the Nintendo 3DS System (whether cable or wireless, in any telecommunication technology and means, including, but not limited to, wireless internet connection, SpotPass and StreetPass).

“Nintendo 3DS System” refers to Nintendo’s handheld device (including embedded software and accessories) sold and marketed by Nintendo under the Nintendo 3DS brand, including any successor handheld devices and compatible devices.

“Nintendo Intellectual Property” refers to all intellectual property, including but not limited to registered and unregistered trade marks, service marks, logos, registered and unregistered designs, copyrights, database rights, inventions, patents, trade secrets, know-how and other confidential and proprietary information which Nintendo developed, owns or is granted a licence to use.

“Nintendo Zone” refers to a service that utilises Wi-Fi hotspots and download stations to enable you to access, browse and/or download Network Content, third-party data, including data of third party partners of Nintendo, and other services, as well as to access, browse, download and/or upload User-Generated Content.

“Personal Mii” refers to a certain Mii that you create and register as your Personal Mii when the Mii creation application runs for the first time. This Mii represents you on your friend list and within applications and games (if supported).

“Relay Point for StreetPass” refers to a wireless LAN access point that sends to, receives from and exchanges with your Nintendo 3DS System Network Content and User-Generated Content via StreetPass.

“Shop Account” refers to a non-transferable personal account that will be automatically established on your (i.e. on one particular) Nintendo 3DS System upon acceptance of these terms, and which you use in connection with the Nintendo 3DS shop applications.

“Shopping Service” refers to the services related to the Nintendo 3DS shop applications, in particular the crediting of funds to your Shop Account, the sale of Shopping Service Products, the operation of an online store and a download service.

“Shopping Service Products” refers to downloadable software and, as the case may be, physical products available through the Shopping Service.

“Sleep Mode” refers to a low-power mode of your Nintendo 3DS System when the processor is inactive and nothing is displayed on the LCD screen of your Nintendo 3DS System.

“SpotPass” refers to a wireless background internet communication between your Nintendo 3DS System and a wireless LAN access point that connects to the internet automatically without a special notification to you, either in Active Mode or in Sleep Mode.

“StreetPass” refers to the wireless communication during Active or Sleep Mode between (a) two Nintendo 3DS Systems that come within the StreetPass range of each other (the range can be up to 100 metres) or (b) between a Nintendo 3DS System and a Relay Point for StreetPass. StreetPass allows your Nintendo 3DS System to send, receive and exchange Network Content and User-Generated Content without your operation and with no special notification to you.

“User-Generated Content” shall mean any communications, messages, text, images, drawings, photos, sound, voice, audio recordings, music, movies, information, data and any other material and content that is created by or licensed to Nintendo 3DS users and that will be uploaded and/or used by Nintendo 3DS users in connection with the Nintendo 3DS Services (including user names, nicknames, Mii characters, Mii nicknames as well as custom levels, maps, scenarios or other material created by a Nintendo 3DS user in connection with a game or service available on the Nintendo 3DS System).

“User-Generated Content Restriction System” refers to a system that (a) restricts you from receiving or sending certain User-Generated Content created by other users of a Nintendo 3DS System or (b) operates to prevent any User-Generated Content from being spread in such manner and within such scope as determined by Nintendo.

1.3. Grant of Licence

We grant you a personal right (licence) to use the Nintendo 3DS Services, in accordance with this Agreement. Specifically:

The Nintendo 3DS Services are solely for your own personal recreational use (or, where you are a parent or legal guardian, personal recreational use by your child). However, you accept responsibility for your use and for anyone else’s use of the Nintendo 3DS Services through your Nintendo 3DS System, whether or not you give them permission to do so.
You may not transfer, assign, sublicense or otherwise dispose of this licence to another person or entity.
You may not use or attempt to use the Nintendo 3DS Services for any commercial or illegal purpose, or in a way that may harm another person or entity, or in an unauthorised or otherwise improper manner.
You must delete all Network Content, including Shopping Service Products downloaded through the Shopping Service, User-Generated Content and any personal data, and all other stored sensitive information that is resident on your Nintendo 3DS System prior to selling or otherwise transferring your Nintendo 3DS System to any third party. If you acquire a used Nintendo 3DS System, you must delete all Network Content, including downloadable Shopping Service Products, User-Generated Content and personal data, and all other stored personal or sensitive information that may be resident on that Nintendo 3DS System at the time you acquire it.
The extent of the Nintendo 3DS Services licensed to you for use on your Nintendo 3DS System depends on where you live, as indicated by your choice of country of residence in the country setting for your Nintendo 3DS System.
You are responsible for any fees and charges as well as any internet connection fees along with all costs for the necessary equipment when accessing or using the Nintendo 3DS Services, including any fees and charges for internet connectivity that automatically takes place in Active or in Sleep Mode (see also Article 2.2. below). Please note that the exact internet costs for applications and functionalities delivered over your internet connection depend on whether you have a flat rate with your internet access provider or on whether you get charged by your internet access provider per minute or per megabyte.

1.4. Third-Party Content / User-Generated Content

We are not responsible for any third-party content or User-Generated Content, or for any action you may take relating thereto (including but not limited to distributing, posting, or sending third-party content or User-Generated Content to others). All third-party content is the sole responsibility of the creator or sender of that third-party content and all User-Generated Content is the sole responsibility of the user who created or sent it. Please note that we are not obligated to monitor, supervise, store or maintain third-party content or User-Generated Content. However, if Nintendo becomes aware of possibly unlawful or inappropriate User-Generated Content, Nintendo reserves the right to delete or to block access to such content at its own discretion, in particular, without limitation, by way of the User-Generated Content Restriction System.

If you post, send or otherwise make available User-Generated Content through any of the Nintendo 3DS Services you grant Nintendo a worldwide, royalty-fee, perpetual and fully transferable right to publish, use and/or to modify the User-Generated Content in any way and for any purpose. You acknowledge that the User-Generated Content may be reproduced, published and/or modified by third parties. This does not apply to User-Generated Content contained in any private messages or in any other private communication.

Please make sure that any User-Generated Content does not include personal information such as your name, your email address, your address or your telephone number. In particular, when choosing a user name or a nickname for your Mii characters, please make sure not to use your real name. Please keep in mind that other users are able to view and share your user name and the nickname of your Mii, e.g. when playing games online or when interacting with other users through the Nintendo 3DS Services.

Please ensure that the User-Generated Content you upload, post, send or otherwise make available through any Nintendo 3DS Service, is not obscene and does not defame or otherwise infringe the rights of others, such as copyrights, portrait rights, privacy rights, rights of publicity, trade marks, patents or other intellectual property rights. If you post, send or otherwise make available photos, images, videos or other personal details of or about other people, you must obtain their permission beforehand.

1.5. Indemnity

You agree to indemnify and hold Nintendo, its affiliates and subsidiaries harmless from and against any loss, liability or claim (including reasonable attorney fees) arising out of or in connection with your use of the Nintendo 3DS Services in an unlawful manner or otherwise in breach of the terms of this Agreement (including, without limitation, the Nintendo 3DS Code of Conduct at Article 1.9.). This indemnity shall include, in particular, any loss, liability or claim arising out of or in connection with any User-Generated Content, including, without limitation, any photographs, videos or any other materials you upload.

1.6. Upgrades and Changes

Nintendo may from time to time upgrade (patch) any software distributed through the Nintendo 3DS Services for the benefit of the Nintendo 3DS Services users or to protect Nintendo’s Intellectual Property.

IMPORTANT: Your Nintendo 3DS System and software are not designed for use with any existing or future unauthorised technical modification of the hardware or software or the use of any unauthorised device in connection with your Nintendo 3DS System. After the Nintendo 3DS System or any software is updated, any existing or future unauthorised technical modification of the hardware or software of your Nintendo 3DS System, or the use of any unauthorised device in connection with your Nintendo 3DS System, may render your Nintendo 3DS System permanently unplayable. Content deriving from the unauthorised technical modification of the hardware or software of your Nintendo 3DS System may be removed.

Nintendo may also automatically update your Nintendo 3DS System for the purpose of ensuring the security and proper functioning of your Nintendo 3DS System, in particular when files created by unauthorised modifications have been installed, which can affect game play and may damage your console.

Nintendo may also update or change the specifications, or modify the Nintendo 3DS Services, in part or in whole, for the benefit of the Nintendo 3DS Services users.

1.7. Third Party Providers

Nintendo may allow third parties to provide services and/or material for the Nintendo 3DS Services, including Shopping Service Products.

1.8. Intellectual Property

Nintendo owns all right, title and interest (including all intellectual property rights) in, or has the right to use and sublicense, the Nintendo 3DS Services and the Nintendo Intellectual Property. Further to the licence set out in Article 1.3., we do not provide you with any right, title or interest in the Nintendo 3DS Services or the Nintendo Intellectual Property. Nintendo reserves all rights in the Nintendo 3DS Services and the Nintendo Intellectual Property.

1.9. Nintendo 3DS Code of Conduct

Your use of the Nintendo 3DS Services is subject to your full compliance with this Nintendo 3DS Code of Conduct, which outlines the rules that you must follow to participate in the Nintendo 3DS Services. These rules are designed to keep the Nintendo 3DS Services a friendly and safe environment.

The Nintendo 3DS Code of Conduct prohibits all harmful, illegal or otherwise offensive conduct, including, but not limited to the following:

Misrepresenting, impersonating, abusing, stalking, threatening or harassing any person or company, including, but not limited to other users, Nintendo itself, and/or its employees, moderators, or staff.
Doing anything illegal, discriminatory, defamatory, hateful, harassing, abusive, obscene, threatening, physically dangerous or otherwise objectionable in connection with the Nintendo 3DS Services.
Being involved in any fraud-related activities; in particular (but without limitation) in case of fraudulent activities concerning the funds credited to your Shop Account.
Providing any incorrect or false details of the credit card used to transfer funds to the Shop Account.
Making, sharing or playing unauthorised copies of games, music, images or other content on the Nintendo 3DS System. This activity is illegal!
Making new versions of existing downloadable Shopping Service Products (“derivatives”).
Trying to access another person’s Nintendo 3DS Services without permission or trying to gain unauthorised access to any of Nintendo’s computers, hardware or networks used to provide the Nintendo 3DS Services.
Cheating in a game, unless such cheats have been deliberately enabled.
Hosting, intercepting, emulating, reverse engineering any part of the Nintendo 3DS System or the Nintendo 3DS Services or redirecting the communication protocols used by Nintendo as part of the Nintendo 3DS Services, regardless of the method used to do so.
Engaging in any commercial activity using the Nintendo 3DS System or any other activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of a Nintendo 3DS System, including the Nintendo 3DS Services or networks connected to the Nintendo 3DS Services.
Accessing or attempting to access another person’s Nintendo 3DS System, including, but not limited to a person’s Shop Account without Nintendo's permission.
Uploading, posting, emailing, transmitting or otherwise making available: (a) any content that you do not have a legal right to make available; (b) any content that infringes the rights of others, including any patent, trade mark, trade secret, copyright, privacy rights, portrait rights or other intellectual property or proprietary rights of any party; (c) any unsolicited or unauthorised advertising or promotional materials (e.g. "spam"); (d) information which personally identifies any third party without their consent; (e) photos, images or videos displaying any third party without obtaining their consent or (f) content whose origin you have disguised.
Selling, trading, assigning, licensing, or otherwise conveying virtual property for real money or for funds credited to a Shop Account, where “virtual property” refers to any features of games or other content that can be traded with other Nintendo 3DS Services users for free or for in-game virtual currency.

1.10. Parental Control Function

The Nintendo 3DS System and the Nintendo 3DS Services enable users to access Network Content, User-Generated Content or any other content that may be inappropriate for minors. Nintendo provides the ability to limit access to certain features of the Nintendo 3DS System and the Nintendo 3DS Services through parental control functionality. If your Nintendo 3DS System is used by individuals other than yourself, in particular if it is used by minors, we strongly recommend that you make use of the parental control functionality to limit access to certain Nintendo 3DS Services and content that you deem unsuitable for minors.

1.11. Transfer, Expiration and Termination of Agreement

You may terminate this Agreement at any time by terminating your Shop Account as described under Article 2.1.6. below and formatting your Nintendo 3DS System in the settings of your Nintendo 3DS System. If you terminate this Agreement, you will automatically forfeit any rights to the funds (if any) credited to your Shop Account and you will not be entitled for a refund of any funds credited to your Shop Account. Termination of this Agreement will prevent your use of any Nintendo 3DS Services, including, but without limitation, of the Shopping Service.
Nintendo may transfer in its sole discretion the entire contractual relation with you to its affiliated company Nintendo Co., Ltd., located at 11-1 Kamitoba-Hokotate-cho, Minami-ku, Kyoto, 601-8501, Japan. Nintendo will inform you of such transfer one month in advance.
We may terminate this Agreement, or any portion of this Agreement, at any time, without notice if you breach the terms of this Agreement. In case of minor breaches of these terms Nintendo will provide you with a prior warning of your non-compliance prior to terminating this Agreement and give you the opportunity to remedy this. If, however, your behaviour is utterly unacceptable, Nintendo is not required to provide you with such prior warning. A behaviour is considered utterly unacceptable in case of serious violations of important provisions of this Agreement. Important provisions include, but are not limited to, a violation of Article 1.9. of this Agreement. Such termination will terminate any licence granted in this Agreement and may prevent you from using the Nintendo 3DS Services, including, without limitation, the Shopping Service and the funds credited to your Shop Account.
We may also terminate this Agreement, or any portion of this Agreement, at any time, for legal, technical or commercial reasons. In this case, we will provide you with reasonable advance notice. Such termination will terminate any licences granted in this Agreement and may prevent your use of the Nintendo 3DS Services.
If this Agreement is terminated for any reason, Articles 1.5., 1.8., 1.12., 1.15., 1.16. and 1.17. will remain in effect.

1.12. Nintendo's Liability to You

Nothing in this Agreement limits or excludes Nintendo's liability for death or personal injury caused by its negligence, for fraud, or for any other liability the limitation or exclusion of which is not permitted by law.

Other than as expressly set out in this Agreement, Nintendo does not give or make any representations, warranties, conditions or other terms about the Nintendo 3DS Services (collectively, "Promises"), and excludes any and all implied Promises (whether implied by common law, statute or otherwise) to the fullest extent permitted by law. You acknowledge that you have not entered into this Agreement in reliance on any prior express or implied representation made by Nintendo (whether made innocently or negligently) and that the terms of this Agreement set out the entire agreement and understanding between Nintendo and you in respect of the Nintendo 3DS Services.

In the event that Nintendo breaches the terms of this Agreement, we will be liable to you for loss or harm that you suffer that was a reasonably foreseeable consequence of our breach (and you must take reasonable measures to mitigate any such loss or harm that you may suffer). However, Nintendo excludes any and all liability for indirect, special or consequential losses (such as loss of profits, loss of revenue, loss of goodwill, loss of opportunity, loss of data or otherwise).

1.13. Changes to this Agreement

A current version of this Agreement will always be available on Nintendo's website. Nintendo may change the terms and conditions of this Agreement at any time so far as this is necessary or helpful to enhance the service or to adapt it to reflect changes in technical or legal requirements. If we make changes, we will notify you by providing a special notice. If you do not object to these changes within 4 weeks after they have been notified to you, the changes will be deemed to be accepted (the special notice will inform you accordingly). If you object to the changes, Nintendo reserves the right to terminate this Agreement or any portion of it upon a reasonable notice and you will have to register again if you wish to continue using the Nintendo 3DS Services under the new terms and conditions.

1.14. Non-Assignability

You are responsible for the use of your Nintendo 3DS System and the Nintendo 3DS Services by your friends, your family or any other third party. You may not assign, transfer, sublicense or otherwise dispose of this Agreement to a third party. However, if a third party makes unauthorised use of your Nintendo 3DS System and/or makes unauthorised access of the Nintendo 3DS Services via your Nintendo 3DS System, you accept full responsibility for such use and/or access.

1.15. Agreement Interpretation

If any part of this Agreement is found to be invalid or unenforceable, that part of the Agreement will no longer apply. You agree that the invalid part will be considered deleted from the Agreement, but that 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 the initial intention.

1.16. Governing Law

This Agreement and any claims under this Agreement shall be governed by the laws of Germany, to the exclusion of the UN Sales Convention on Contracts for the International Sale of Goods and without reference to conflict of laws principles.

1.17. Third Party Rights

This Agreement does not, and is not intended to, confer any right or benefit on a person (existing now or in the future) who is not a party to it (whether by virtue of the Contracts (Rights of Third Parties Act) 1999 or otherwise).

2. Specific Applications and Communication Methods

Nintendo 3DS Services offer you a great variety of applications that allow your Nintendo 3DS System to communicate using wireless internet communication, Local Wireless and StreetPass.

This Article 2. describes the main applications and communication methods of the Nintendo 3DS System. Nintendo will inform you via the update of this Agreement about other new applications which require your knowledge and consent.

The Nintendo 3DS System allows you to disable all Nintendo 3DS Services by using the wireless switch of your Nintendo 3DS System.

2.1. Shopping Service

2.1.1. Shop Account

The Shopping Service may not be available in your country. Subject to the availability of the Shopping Service in your country, you can open a Shop Account on your Nintendo 3DS System. Only one Shop Account can be opened for each Nintendo 3DS System. A Shop Account is personal to you and is tied to your Nintendo 3DS System. Your Shop Account and any Shopping Service Products associated with your Shop Account may not be sold or otherwise transferred to another person or to another Nintendo 3DS System owned by you or by a third party. Notwithstanding the aforesaid, Nintendo may, in its sole discretion, allow you to transfer certain Shopping Service Products from your Nintendo 3DS System to another Nintendo 3DS System you own (see below Article 2.8.).

You are responsible for monitoring your Shop Account and for setting up appropriate Parental Controls or other measures to limit the access to your Shop Account.

2.1.2. Purchasing Shopping Service Products

The Shopping Service allows you to use funds transferred to your Shop Account to purchase Shopping Service Products. Funds are non-refundable and cannot be exchanged for cash or credit. Funds can only be used to purchase Shopping Service Products via the Shopping Service. Nintendo may, in its sole discretion, restrict the maximum amount of funds that you can transfer to your Shop Account.

Funds are for your own personal use and are tied to your Shop Account. Once funds are credited to your Shop Account, you may not withdraw or transfer them to another person or platform (e.g. to another Nintendo platform, such as the Wii console or the Nintendo DSi system) or use them to purchase content on any other Nintendo platform. In addition, you may not transfer funds of your Shop Account to any other Shop Account not owned by yourself. Notwithstanding the aforesaid, Nintendo may, in its sole discretion, allow you to transfer funds credited to a Shop Account on your Nintendo 3DS System to another Nintendo 3DS System you own (see below Article 2.8.).

You are responsible for your use of the funds for your Shop Account, and for anyone else’s use of those funds.

2.1.3. Transferring Funds to your Shop Account

There are two ways to transfer funds to your Shop Account: By credit card or by purchasing a Funding Card at a retailer:

You can use your credit card to transfer funds for your Shop Account online via the Nintendo 3DS System. Funds transferred to your Shop Account using a credit card will be immediately credited to your Shop Account.
You can also buy a Funding Card at a retailer. To transfer the funds stored on the Funding Card to your Shop Account you have to enter the number printed on the Funding Card when requested.

You can check the funds credited to your Shop Account at any time in your account history. Funds are displayed in the currency corresponding to the country settings you have chosen for the Nintendo 3DS System. Please note that if you change your country settings to a country with a different currency (e.g. if you change your country settings from Germany to United Kingdom) the funds credited to your Shop Account with regard to the former country settings will be blocked and you will not be able to use any funds credited under the former country settings under the changed country settings. If you change your new country settings back to your former country settings, you will be able to use the funds again.

2.1.4. Credit Card Charges and Account History

Each time you deposit funds into your Shop Account online with your credit card, you will receive a receipt confirming your transaction. This receipt will be posted in your account history. When you use the funds to purchase Shopping Service Products, the transaction will also be reflected in your account history. You may access your account history through your Shop Account.

2.1.5. Downloading of Shopping Service Products from the Shopping Service

Upon ordering a certain item of Shopping Service Products, the sums required to download that Shopping Service Products will be charged to your Shop Account. Once you have completed the order procedure for a downloadable Shopping Service Product, you cannot cancel that transaction and the Shopping Service Product is made available to you on your Nintendo 3DS System. If you do not have sufficient funds to complete a transaction, Nintendo will not accept any orders placed by you.

By placing an order through the Shopping Service using your Shop Account or by allowing another person to place such order you (i) authorise Nintendo to deduct the price of any Shopping Service Product from the funds credited against your Shop Account and (ii) agree to these terms and conditions.

The prices indicated for any Shopping Service Products available in the Shopping Service will be in the currency corresponding to the country settings you have chosen for the Nintendo 3DS System and shall include all applicable taxes.

2.1.6. Termination of your Shop Account

You may terminate your Shop Account by removing your Shop Account from the Nintendo 3DS System in the settings of the Shop Account. If you terminate your Shop Account you will automatically forfeit any rights to any unused funds credited to your Shop Account, which become the property of Nintendo, and will not be entitled to a refund for any unused funds.

Without prejudice to Nintendo's rights under Article 1.11. of this Agreement, if there is any fraudulent or unlawful activity concerning the funds credited to your Shop Account or the use of the funds credited to your Shop Account, by any person, we may terminate, suspend or otherwise limit your access to the Nintendo 3DS Services, or any portion of the Nintendo 3DS Services, upon which your right to use the Shopping Service, including your funds credited to your Shop Account, will immediately cease. In such a case you will not be entitled to a refund for any unused funds credited to your Shop Account.

2.1.7. Changes to the Shopping Service

Nintendo may modify the Shopping Service (in particular if this is necessary or helpful to enhance the Shopping Service or to adapt it to reflect changes in technical or legal requirements), terminate the Shopping Service, and/or cease to provide any or all of the Shopping Service Products offered on the Shopping Service. If we terminate the Shopping Service, we will provide you with reasonable advance notice.

2.1.8. Right to Cancel

2.1.8.1. Instructions for Right to Cancel

============================

Right to cancel

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

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

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

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

Effects of cancellation

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

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

(a) 14 days after the day we receive back from you any goods supplied; or

(b) (if earlier) 14 days after the day you provide evidence that you have returned the goods; or

(c) if there were no goods supplied, 14 days after the day on which we are informed about your decision to cancel this contract.

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

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

============================

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

- contracts for the supply of digital content: where we supply digital content not on a tangible medium, the cancellation right expires if we have begun our supply of the digital content after you have expressly consented that we can begin the supply before the cancellation period ends, and you have acknowledged that you lose your right to cancel the contract in this circumstance;

- service contracts: the cancellation right expires earlier if the service has been fully performed by us, the performance of the service began with your prior express consent, and you acknowledged that you lose your right of cancellation once the contract has been fully performed.

2.1.8.2. Model Cancellation Form

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

- To Nintendo of Europe GmbH, Herriotstrasse 4, 60528 Frankfurt am Main, Germany, fax number: +49 69 667747 95412, email address: eShopService@nintendo.de

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

- Ordered on ( * )/received on ( * );

- Name of consumer(s);

- Address of consumer(s);

- Signature of consumer(s) (only if this form is notified on paper),

- Date:

( * ) Delete as appropriate.

2.2. SpotPass

SpotPass may send to your Nintendo 3DS System certain Network Content, such as

(i) system updates;

(ii) important service messages from Nintendo in relation to the Nintendo 3DS System or your use of the Nintendo 3DS System such as updates on technical issues, etc. These messages are an integral part of the operation of the Nintendo 3DS System and the Nintendo 3DS Services;

(iii) User-Generated Content Restriction System data or updates of User-Generated Content Restriction System data; and

(iv) free applications, like free games, unless you opt-out of this content in the system settings.

IMPORTANT: Please be aware that SpotPass uses an internet connection and automatically connects to the internet without notifying you of such connection. Such connection automatically takes place in Active Mode or in Sleep Mode. Any internet connection may incur costs, the exact amount of which depends on whether you have a flat rate with your internet access provider or on whether you get charged by your internet access provider per minute or megabyte. To avoid that incurring any internet costs as a consequence of using SpotPass, you can disable all wireless communications by using the wireless switch of your Nintendo 3DS.

You may also choose to receive commercial information via SpotPass, including marketing and advertising messages about Nintendo or third-party products and marketing and commercial applications, including demo versions of games, trailers, etc. You will only receive such commercial information if you opt-in to receive such information.

2.3. StreetPass

StreetPass allows your Nintendo 3DS System to arbitrarily select another Nintendo 3DS System or a Relay Point for StreetPass and to send to, receive from and exchange Network Content and User-Generated Content with another Nintendo 3DS System or Relay Point for StreetPass automatically without your operation and with no special notification to you. This information may among others include information attached to your Mii.

By using StreetPass, you will not incur any connection or transmission fees or charges.

Communication via StreetPass may take place when your Nintendo 3DS System is in Active or Sleep Mode. In general, as StreetPass is switched off by default, StreetPass will only take place if you choose the respective settings for StreetPass.

Please note that even if you choose not to opt in to StreetPass, your Nintendo 3DS System may transfer, transmit or in any other way forward Network Content or User-Generated Content received from other Nintendo 3DS Systems or from a Relay Point for StreetPass to any other Nintendo 3DS System of other users or to a Relay Point for StreetPass. In this case, only the Network Content and User-Generated Content of other users will be transferred via your Nintendo 3DS System; no data stored on your Nintendo 3DS System concerning you or any other player of your Nintendo 3DS System will be transmitted or sent.

2.4. Friends Functionality

In connection with the friend functionality, your Nintendo 3DS System provides for an “Address Book” and a “Friend Presence Feature”. The “Address Book” is a special application allowing you to enter friend codes or to send friend cards to establish a friendship with another user of a Nintendo 3DS System, to check whether your Friends are online and to interact with your Friends, including, without limitation, to exchange messages and other information with your Friends. The “Friend Presence Feature” allows all your Friends to see your online status, presence information and your play history data (such as information on when your are online, name and icon of favourite application, name and icon of application currently played, current level, current in-game location, playing time, recent logout time, time of updating comments shared with your Friends, etc.) as well as data related to your Personal Mii and you will be able to see the online status, presence information and the play history data of your Friends.

You can choose whether to allow your Friends to see your online status, presence information and the play history.

2.5. Applications Using Mii Characters

You can send Mii characters to other Nintendo 3DS Systems and can receive Mii characters from other Nintendo 3DS Systems in various Mii-compatible games and applications. When you allow your Mii to “travel” to another Nintendo 3DS System, the Mii is sent to the user of the other Nintendo 3DS System. You may choose to attach certain information to the Mii you created, like name of the Mii, name of the Personal Mii, information related to the appearance of the Mii, such as body shape and colour, name of the game recently played, etc. Such information will also be visible to the other user receiving your Mii.

In some applications, you can send Mii characters manually to another Nintendo 3DS System.

In other applications, if you made the respective settings, the transmission and exchange of your Mii characters takes place automatically without any special notification to you via StreetPass.

Similar to other User-Generated Content sent through any of the Nintendo 3DS Services (see Article 1.4. above) please note that if your Mii “travels” to other users, such other users may reproduce, alter and or modify the Mii characters and may further share the Mii characters (including the information attached to it) with other users of any Nintendo 3DS System all over the world. When creating a Mii you will be able to choose whether to allow any recipient of your Mii to copy your Mii and whether to allow your Mii to “travel” via StreetPass.

2.6. Correspondence Application

Correspondence application of the Nintendo 3DS System allows you to send User-Generated Content, including handwritten messages, photos and audio data such as voice records, to your Friends and to receive User-Generated Content from your Friends. Please note that if you choose the respective settings, User-Generated Content you share with your Friends may be further shared with other users, including via StreetPass.

2.7. Nintendo Zone

The Nintendo 3DS System will show you a notification icon if you are close to a Nintendo Zone. You may choose whether to access a Nintendo Zone and, if you do, then Nintendo and/or its selected partners may provide commercial or non-commercial information over the Nintendo Zone to your Nintendo 3DS System. However, Nintendo will not send you unsolicited commercial messages if you choose not to access the Nintendo Zone.

2.8. System Transfer

“System Transfer” is an application allowing you to transfer certain data and content (i) from one Nintendo 3DS System to another or (ii) from one Nintendo DSi system to a Nintendo 3DS System over an internet communication or Local Wireless communication.

When using the System Transfer you are only allowed to transfer data between Nintendo 3DS Systems that you own; you are not allowed to transfer data from a Nintendo 3DS System that you own to a Nintendo 3DS System owned by a third party.

Please note that you can only transfer data Nintendo has designated as transferable. As far as designated by Nintendo as transferable, you may transfer certain save data for built-in applications, photos and audio data, system settings data (such as the settings for your wireless internet communications, friend codes) and certain add-on data created by built-in application using Local Wireless.

Notwithstanding anything to the contrary contained in the Nintendo DSi Network Services Agreement and so far as designated by Nintendo as transferable, Nintendo may allow you to transfer software you have downloaded from the Nintendo DSi Shop on your Nintendo DSi system to a Nintendo 3DS System that you own.

Notwithstanding Article 2.1.1. above and as far as designated by Nintendo as transferable, Nintendo may allow you to transfer software you have downloaded from the Shopping Service on your Nintendo 3DS System to another Nintendo 3DS System you own.

Notwithstanding Article 2.1.2. above and as far as designated by Nintendo as transferable, Nintendo may, in its sole discretion, allow you to transfer funds credited to a Shop Account on your Nintendo 3DS System to another Nintendo 3DS System you own.

3. Privacy Policy

Nintendo of Europe GmbH, Herriotstrasse 4, 60528 Frankfurt am Main, Germany ("Nintendo", "we" or "us") respects the privacy rights of its users and recognises the importance of protecting their personal data. We have developed the Privacy Policy to provide you with information relating to the privacy, security, collection and use of information you submit through the Nintendo 3DS Services. Nintendo shall be the controller within the meaning of the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 – “GDPR”).

By selecting the “I Accept” option to accept the terms of this Agreement, you acknowledge this Privacy Policy at the same time.

3.1. Personal Data of Children

If you - as the holder of parental responsibility – allow your child to use Nintendo 3DS Services and set up the Nintendo 3DS Services on behalf of your child, the personal data of your child is collected, processed and used in accordance with this Privacy Policy.

3.2. Information Collected and its Uses

3.2.1. What Information We Collect

In connection with the provision of the Nintendo 3DS Services we may collect

your email-address,
the MAC address assigned to your Nintendo 3DS System,
the IP address, which is automatically assigned to your Nintendo 3DS System by your internet service provider when your Nintendo 3DS System connects to the internet,
the serial number assigned to your Nintendo 3DS System,
friend codes,
Shop Account ID,
information about the way your Nintendo 3DS System and the Nintendo 3DS Services are used, such as play history, online presence information and play history data (such as software titles played, time when playing started and playing time, information on when the Nintendo 3DS System has been online, name and icon of favourite application, name, icon and information about application currently played, including player name, current level, current in-game location, recent logout time, time of updating comments shared with your Friends) as well as information you submitted when participating in surveys,
configuration information from the Nintendo 3DS System and system setting information from the Nintendo 3DS System (including country settings, language settings, parental control settings, internet settings),
information related to the messages sent to Friends (including friend codes, nicknames, date, number of pages and technical information regarding attachments).

In order to purchase Shopping Service Products and to upload funds to your Shop Account via Shopping Services, you may need to provide credit card information (credit card number, expiration date and security code) to enable the transaction.

If you use Shopping Services, we collect and process information about the registration of licences for Shopping Service Products, payments for Shopping Service Products, uploading funds and other transactions you make in Shopping Services. We may also collect and process information about the way you use the Shopping Service, including your purchase history, information on Shopping Service Products you have viewed and registered on your wish list, which sections of Shopping Service you visit, how you navigate in Shopping Services as well as recommendations and game ratings made by you.

3.2.2. How We Use the Information – Purposes of Processing

3.2.2.1. Providing the Service

We collect and further process the information we collect in order to:

Set up the Nintendo 3DS Services for you and to provide you with access to the Nintendo 3DS Services;
Set up the connection of your Nintendo 3DS System with the Nintendo 3DS Services;
Provide you content, products and services available in Nintendo 3DS Services and to enable your participation in activities supported by Nintendo 3DS Services;
Process orders and requests that you make in Nintendo 3DS Services; and to
Provide consumer support and repair services (including hardware and repair services for Nintendo 3DS Systems).

If you use Shopping Services, we process the information about the transactions you make and about the registration of licenses to the extent necessary to process your orders, to register your licences, to provide you the transaction history and receipts and to meet our financial and legal obligations. If you use a credit card in Shopping Services, Nintendo processes your credit card data to conduct the payment. In order to allow that you do not need to re-enter your credit card details for your next transaction, Nintendo offers you the option to store your credit card details as an additional service. Nintendo will store the number of your credit card separately according to the rules issued by the credit card provider.

The legal basis for the processing referred to in this Section 3.2.2.1. is the provision of the service you have requested (Art. 6 para. 1 (b) GDPR).

3.2.2.2. Fraud prevention and prevention of other illegal activities

We may process the collected information as far as this is necessary to prevent fraud, potentially illegal or offensive activities or to enforce our rights or the rights of our users. The legal basis for this processing is Art. 6 para. 1 (f) GDPR. The legitimate interest we pursue is the prevention of fraudulent and illegal activities, the protection of our systems and networks, of Nintendo 3DS Services and of our users and the enforcement of our legitimate rights and rights of our users.

You have the right to object, on grounds relating to your particular situation, at any time to such processing. To exercise this right you may at any time contact us as provided in Section 3.9. of this Privacy Policy.

3.2.2.3 Product and Service Improvement

“Usage Information” as referred to in this Section 3.2.2.3. includes all information submitted through Nintendo 3DS Services as well as all information collected and processed when using the Nintendo 3DS System and the Nintendo 3DS Services.

We process the Usage Information (excluding, however, your payment data) to perform analytics and statistics of the usage of the Nintendo 3DS Services in order to improve and optimize the Nintendo 3DS Services and our products, services and our performance.

The legal basis for this processing is Art. 6 para. 1 (f) GDPR. The legitimate interest we pursue is the improvement and optimization of the Nintendo 3DS Services and of our products and performances which is to the benefit of the users.

You have the right to object, on grounds relating to your particular situation, at any time to such processing. To exercise this right you may opt out of the processing of your information for such product and service improvement purposes at any time under “Sending of Usage Information” in the Nintendo 3DS System settings.

3.3. User Communications

When you send an email or other communication to Nintendo, we may use those communications in order to process your inquiries and respond to your requests.

The legal basis for this processing is the provision of the service you have requested (Art. 6 para. 1 (b) GDPR).

3.4. User-Generated Content

Some of the Nintendo 3DS Services may allow you to use nicknames and create a user ID to play online with other users or to participate in online rankings as part of Nintendo 3DS Services. If you choose to use such features, your nickname, game status and other game play and ranking data, name and appearance of a Mii character representing you in the Nintendo 3DS Services, country and /or a game avatar are shared with other users to enable you to play with others and to participate in online rankings.

Apart from the aforementioned online features, parts of Nintendo 3DS Services may support further communication between users and the exchange of User-Generated Content. If you choose to use such parts of Nintendo 3DS Services, other users may be able to see some information about you, such as name and appearance of a Mii Character representing you in Nintendo 3DS Services, Mii profile information, country and any User-Generated Content you submit. Depending on the application you have chosen to use in Nintendo 3DS Services, your player history, your ranking and status, name of your favourite application or the most recent application that you used, your age or your online status may be shared between users or published online to enable the requested interaction. The legal basis for this processing is the provision of the service you have requested (Art. 6 para. 1 (b) GDPR).

If you choose to use the Friend feature provided as part of Nintendo 3DS Services, your Friends can see your presence information and play history. The legal basis for this processing is the provision of the service you have requested (Art. 6 para. 1 (b) GDPR. If you do not want your Friends to see your presence information or the play history, you can disable this feature.

In case you have set up a friend list or a black list for Nintendo 3DS users, this information may be processed by a game or application that you play to make sure that your choices are respected. The legal basis for this processing is the provision of the service you have requested (Art. 6 para. 1 (b) GDPR).

3.5. Information on your Nintendo 3DS System

Your Nintendo 3DS System may store certain information about you. For your protection, before selling or otherwise transferring your Nintendo 3DS System, please make sure to delete all Shop Account information and to format your Nintendo 3DS System in the settings of your Nintendo 3DS System so that all information stored during your use of this Nintendo 3DS System is deleted.

3.6. Who Has Access to your Information

3.6.1. Nintendo may share your information with other entities of the Nintendo group to be used in accordance with this Privacy Policy, in particular, with:

Its European branches such as in Italy, Germany, Austria, Switzerland and the United Kingdom, and its European affiliates such as Nintendo France SARL, Nintendo Ibérica, S.A.U. and Nintendo Benelux B.V.;
Nintendo Co. Ltd., located in Japan, and Nintendo of America Inc., located in the United States,. The level of data protection provided under the Japanese, and US law is lower than the level provided in the European Community. If Nintendo shares your information with Nintendo Co. Ltd. or Nintendo of America Inc. appropriate safeguards for an adequate level of data protection are provided for by standard data protection clauses that have been adopted by the European Commission and that have been entered into between Nintendo and Nintendo Co. Ltd. or Nintendo of America Inc..

The legal basis for Nintendo sharing your information with other entities of the Nintendo group is Art. 6 para. 1 (f) GDPR. We have a legitimate interest in sharing your information for internal administrative purposes, in particular to offer the Nintendo 3DS Services and to deal with any inquiries in an efficient and high-quality manner. You have the right to object, on grounds relating to your particular situation, at any time to such sharing. To exercise this right you may at any time contact us as provided in Section 3.9. of this Privacy Policy.

3.6.2. Depending on your country of residence, we may also share your information with our third party distributors that provide consumer support services in connection with Nintendo 3DS Services for your country (including hardware and repair services for Nintendo 3DS Systems). Your information will be used in accordance with this Privacy Policy and only as far as this is necessary for performing consumer support services. A list of the third party distributors is available at support.nintendo.com. The legal basis for sharing your information with our third party distributors is the performance of the consumer support services (Art. 6 para. 1 (b) GDPR).

3.6.3. We may also share your information (including your IP address) with our third party content delivery network providers that provide content delivery network services in connection with the Nintendo 3DS Services. Our content delivery network providers enable faster video streaming and support the delivery of content you have requested, e.g. when using Shopping Services, by using a system of distributed servers that deliver the content to you, based on your geographic location. A list of the third party content delivery network providers is available at support.nintendo.com. The legal basis for sharing your information with our third party content delivery network providers is Art. 6 para. 1 (f) GDPR. We have a legitimate interest in sharing your information to enable faster delivery and to optimize transportation of the content you have requested, in particular to provide requested content in a high-quality manner which is to the benefit of our users. You have the right to object, on grounds relating to your particular situation, at any time to such sharing. To exercise this right you may at any time contact us as provided in Section 3.9. of this Privacy Policy.

3.6.4. In compliance with applicable data protection requirements, Nintendo may also use third-party data processors and may share your formation with such third party data processors acting on Nintendo’s behalf to provide services in connection with Nintendo 3DS Services. Where such third party processors are located outside the European Union respectively the European Economic Area, such third party processors are either located in a third country where the European Commission has decided that this country ensures an adequate level of data protection or appropriate safeguards for an adequate level of data protection are provided for by standard data protection clauses that have been adopted by the European Commission and that have been entered into between Nintendo and the third party data processor.

3.7. Storage Time

We will only store your information as long as necessary to fulfil the purposes for which the information is collected and processed or – where the applicable law provides for longer storage and retention period – for the storage and retention period required by law. After that your personal data will be deleted.

In particular:

If you terminate this Agreement, your personal data will be deleted. Please note that Nintendo is required to retain certain transactional data from Shopping Services you used under statutory commercial and tax law for a period of up to ten (10) years.
If you exercise a right to object to the processing of your personal data, we will delete your personal data that we processed for the purpose to which you objected without undue delay, unless another legal basis for processing and retaining this data exists or unless applicable law requires us to retain the data.

3.8. Your rights under GDPR

In particular, but without limitation, you may have the following rights under applicable European data protection law:

Right of access: You have the right to obtain confirmation from us as to whether or not we process personal data from you and you also have the right to at any time obtain access to your personal data stored by us. To exercise this right you may at any time contact us as provided in Section 3.9. of this Privacy Policy.
Right to rectification of your personal data: If we process your personal data, we shall endeavour to ensure by implementing suitable measures that your personal data is accurate and up-to-date for the purposes for which we collected your personal data was collected. If your personal data is inaccurate or incomplete, you have the right to obtain the rectification of such data. To exercise this right you may at any time contact us as provided in Section 3.9. of this Privacy Policy.
Right to erasure of your personal data or right to restriction of processing: You may have the right to obtain the erasure of your personal data or the restriction of processing of your personal data. To exercise this right you may at any time contact us as provided in Section 3.9. of this Privacy Policy. To delete your information you can also terminate this Agreement which will prevent you from using Nintendo 3DS Services.
Right to data portability: You may have the right to receive the personal data concerning you and which you have provided to us, in a structured, commonly used and machine-readable format or to transmit those data to another controller. To exercise this right you may at any time contact us as provided in Section 3.9. of this Privacy Policy.
Right to object: You have the right to object to the processing of your personal data as specified in this Privacy Policy.
Right to lodge a complaint with supervisory authority: You have the right to lodge a complaint with a data protection supervisory authority located in the European Union. You may contact the Hesse Data Protection Supervisor.

3.9. Contact and Data Protection Officer

If you have any questions about this Privacy Policy and Nintendo’s data processing activities or if you want to exercise any of your rights under GDPR, please contact:

Nintendo of Europe GmbH ("Nintendo"), Attn.: Legal Department, Herriotstrasse 4, 60528 Frankfurt am Main, Germany, or via email at privacyinquiry.noe@nintendo.de.

You can also contact Nintendo’s data protection officer:

Nintendo of Europe GmbH, Attn.: Legal Department, Herriotstrasse 4, 60528 Frankfurt am Main, Germany or via email: dataprotectionofficer@nintendo.de.