End User License Agreement (EULA)

This is an agreement (the “Agreement”) between you and Nintendo of America Inc. (together with its affiliates, “Nintendo” or “we” or “our”) and provides important information about your access to and use of this Nintendo classic entertainment system, its accessories, and the Software (defined below) (collectively, the “System”).

BY USING THE SYSTEM, YOU REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER (OR THE AGE OF MAJORITY WHERE YOU LIVE) AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SYSTEM. IF YOU RECENTLY PURCHASED THE SYSTEM FROM AN AUTHORIZED RETAILER, AND YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY RETURN THE SYSTEM TO THE SELLER FOR A REFUND, IN ACCORDANCE WITH THE APPLICABLE RETURN POLICY. THIS AGREEMENT CONTAINS A BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 5 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO ANY “CLAIM” (AS DEFINED IN SECTION 5) BETWEEN YOU AND NINTENDO. YOU HAVE THE RIGHT TO OPT OUT OF THE PROVISION AS DESCRIBED IN SECTION 5.

1. License Grant/Restrictions. Subject to the terms of this Agreement, you may use the software, content, and data that came with the System (collectively, the “Software”). The Software is licensed, not sold, to you solely for your personal, noncommercial use. You may not publish, copy, modify, reverse engineer, lease, rent, decompile, disassemble, distribute, offer for sale, or create derivative works of any portion of the Software, or bypass, modify, defeat, tamper with, or circumvent any of the functions or protections of the System, unless otherwise permitted by law. You agree not to use the System in an unlawful manner.
2. Nintendo Intellectual Property/Reservation of Rights. Nintendo owns all right, title and interest (including all intellectual property rights) in, and has the right to use and sublicense, the Nintendo Intellectual Property utilized in connection with the System. "Nintendo Intellectual Property" refers to all intellectual property, including but not limited to registered and unregistered trademarks, logos, registered and unregistered designs, copyrights, database rights, inventions, patents, trade secrets, know-how, and other confidential and proprietary information which Nintendo developed, owns or is granted a license to use. Neither the sale, transfer, license, nor the use of the System transfers any title or ownership of any of our intellectual property rights, including without limitation the Nintendo Intellectual Property. We reserve all rights that we have not expressly granted in this Agreement. Nintendo reserves all rights in the Nintendo Intellectual Property.
3. Termination. Your rights under this Agreement will immediately terminate if you do not comply with any term of this Agreement. At the time of any termination of this Agreement, you will immediately cease all use of the System. Our failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any of our rights.
4. Disclaimer of Warranties and Limitation of Liability.
   1. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD OF NINTENDO.
   2. USE OF THE SYSTEM IS AT YOUR SOLE RISK. EXCEPT FOR ANY LIMITED WARRANTY THAT APPLIES TO THE SYSTEM, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NINTENDO OR ITS REPRESENTATIVES CREATES A WARRANTY, THE SYSTEM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NINTENDO DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SYSTEM, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
   3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NINTENDO WILL NOT BE LIABLE TO YOU FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE SYSTEM, EVEN IF NINTENDO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NINTENDO’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH ANY CLAIMS ARISING OUT OF OR RELATING TO THE SYSTEM IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR THE SYSTEM.
   4. IF A LAW RESTRICTS OUR ABILITY TO LIMIT LIABILITY OR DISCLAIM WARRANTIES, THE LIMITATIONS LISTED ABOVE MAY NOT APPLY TO YOU. IN THAT CASE, WE LIMIT OUR LIABILITY AND DISCLAIM WARRANTIES TO THE GREATEST EXTENT PERMITTED BY LAW.
5. Dispute Resolution; Binding Individual Arbitration; Class Action Waiver.
   1. Our consumer services department is available to address any concerns you may have regarding the System. You may contact them by phone at 1-800-255-3700, by email at useragreement@noa.nintendo.com, or by regular mail sent to Nintendo of America Inc., Attn: User Agreement, 4600 150th Ave NE, Redmond, WA 98052 USA. Most matters are quickly resolved in this manner to our customer’s satisfaction. Any matter we are unable to resolve and all disputes or claims arising out of or relating to this Agreement, including its formation, enforceability, performance, or breach (each, a “Claim”), with the exception of the matters described in section 5(C) below, shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer-related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all Claims. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. 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. Any such arbitration shall be conducted by the parties in their individual capacities only and not as a class action or other representative action, and the parties waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class-action waiver set forth in the preceding sentence 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 5 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
   2. The rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at +1-800-778-7879. 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. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim is less than $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases.
   3. Section 5(A) does not apply to any Claim (i) in which a party is attempting to protect its intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights), or (ii) that may be brought in small-claims court.
   4. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Section 5 by sending written notice of your decision to opt out to the following address: Nintendo of America Inc., Attn: CS Admin, 4600 150th Ave NE, Redmond, WA 98052 within 30 days of purchasing the Nintendo video game system. Your notice should include the serial number and, if applicable, your purchase receipt. If you send this notice, then Section 5 will not apply to either party. If you do not send this notice, then you agree to be bound by this Section 5.
6. Enforcement. If any part of this Agreement is held to be invalid or unenforceable, that part will no longer apply to the parties but all other parts of the Agreement will remain in effect unless otherwise provided in this Agreement. If we do not enforce any provision of this Agreement, that will not be considered a waiver of our rights. Any waiver or amendment of this Agreement must be obtained in a written document signed by an authorized representative of Nintendo.
7. Governing Law/Venue. This Section 7 shall apply in the event that a dispute or Claim is not governed by Section 5:
   1. If you reside in the United States or a country other than Canada, this Agreement and any disputes arising in connection therewith 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, and the parties consent to the exclusive jurisdiction of the courts located in King County, Washington, U.S.A.
   2. If you reside in Canada, this Agreement and any disputes arising in connection therewith shall be subject to and governed by, construed and interpreted in accordance with the laws of the Province of British Columbia, Canada, except for its conflict of law rules, and the parties consent to the exclusive jurisdiction of the courts located in British Columbia, B.C., Canada.