DSi Network Service User Agreement


This Agreement constitutes a binding agreement between you, an individual, and Nintendo Australia Pty Ltd ACN 060 566 083, 804 Stud Road, Scoresby, Victoria, Australia. In this Agreement, Nintendo Australia Pty Ltd will be referred to as “Nintendo”, “we” or “us”.

 

Article 1: Nintendo DSi Network Service.

 

This Agreement covers your use of the Nintendo DSi Network Service.

 

This Agreement also includes the following documents:

 

• Where applicable, the Nintendo DSi Shop Service Agreement.

 

• The Nintendo DSi Network Service Code of Conduct (“Nintendo DSi Code of Conduct”). The purpose of this document is to keep the Nintendo DSi Network Service a friendly and safe environment.

 

• The Nintendo DSi Network Service Privacy Policy (“Nintendo DSi Privacy Policy”). This document provides you with an understanding of the use and security of the Personal Information that is submitted, collected and generated through the Nintendo DSi Network Service.

 

We strongly recommend that you review both of these documents before accepting the terms of this Agreement.

 

By accepting the terms of this Agreement, you are also accepting all of the terms of the Nintendo DSi Privacy Policy and the Nintendo DSi Code of Conduct.

 

Article 2: Grant of Licence.

 

We grant you a personal, limited, non-exclusive, revocable licence to use the Nintendo DSi Network Service, in accordance with this Agreement. Specifically:

 

• The Nintendo DSi Network Service is solely for your own Personal Use. However, you are responsible for your use and for anyone else’s use of the Nintendo DSi Network Service through your Nintendo DSi System, whether or not you give them permission to use it.

 

• You may not transfer or assign this licence to another person or entity, and any attempt to transfer or assign this licence will be void.

 

• You may not use or attempt to use the Nintendo DSi Network Service for any commercial or illegal purpose, or in a way that may harm another person or company, or in an unauthorised or otherwise improper manner as we may specify from time to time.

 

• You are responsible for clearing all Content, Third Party Data, and any Personal Information, that resides on your Nintendo DSi System prior to selling or otherwise transferring it to any third party. If you acquire a used Nintendo DSi System, you are also responsible for clearing all Content, Third Party Data and Personal Information, that resides on that Nintendo DSi System at the time you acquire it in a manner that complies with the Nintendo DSi Privacy Policy.

 

• The Nintendo DSi Network Service is licensed to you for use on your Nintendo DSi System only in Australia or New Zealand.

 

• Nintendo may revoke this licence (in whole or in part) at any time.

 

Article 3: Upgrades and Changes.

 

Nintendo may modify, change or upgrade the Nintendo DSi System, any Content distributed through Nintendo DSi Network Service, or change the Internet content of Nintendo DSi Network Service, in part or in whole, at any time without notice to you.

 

Article 4: Third Party Providers.

 

Nintendo may allow third parties to provide to you any part of the Nintendo DSi Network Service and Third Party Data. Third Party Data is the sole responsibility of its creator and sender.

 

Article 5: Nintendo Zones.

 

Nintendo may allow third parties to offer commercial information to your Nintendo DSi System at Nintendo Zones. If you do not wish to receive such information you should not click on the Notice which will advise you that you are near a Nintendo Zone. Nintendo does not accept any liability for any Third Party Data or communication to your Nintendo DSi System at a Nintendo Zone.

 

Article 6: Intellectual Property.

 

Nintendo owns all right, title and interest in, or has the right to use and sublicense, the Nintendo Intellectual Property and all rights in the Nintendo DSi Network Service. You do not obtain any interest in the Nintendo DSi Network Service or the Nintendo Intellectual Property. Nintendo reserves all rights. You may not create works based on the Nintendo Intellectual Property, or adapt, distribute or communicate the Nintendo Intellectual Property to the public unless specifically authorized to do so. Nintendo shall own all right, title and interest in any such works created, adapted, distributed or transmitted.

 

Article 7: Prohibition of Duplication, Modification and Reverse-Engineering.

 

Only Nintendo has the right to host the Nintendo DSi Network Service. Accordingly, you may not host, intercept, emulate reverse engineer or redirect the communication protocols used by Nintendo as part of the Nintendo DSi System or the Nintendo DSi Network Service, regardless of the method used to do so.

 

Article 8: Unauthorised Software, Services, Devices or Accessories

 

Your Nintendo DSi System and the Nintendo DSi Network Service are not designed for use with any unauthorised software, services, devices or accessories. You may not use any such software, services, devices or accessories in connection with your Nintendo DSi System or Nintendo DSi Network Service. Such use may void any warranty and is a breach of this Agreement. Further, such use may lead to injury to yourself or others and may cause damage to your Nintendo DSi System and the Nintendo DSi Network Service. Nintendo is not responsible for any damage or loss (including loss of data) caused by the use of any such software, services, devices or accessories. If we detect illegal software, services, devices or accessories, or illegal modifications to the Nintendo DSi System, including modifications to circumvent any Nintendo technological protection measure we may disable the Nintendo DSi System or take action which means some Content may not be usable.

 

Article 9: Parental Controls Function and Restricted Access

 

We provide the ability to limit access to certain features of the Nintendo DSi System and the Nintendo DSi Network Service through a parental control function. If required by law Nintendo may also restrict access to Content and Third Party Data provided through the Nintendo DSi Network Service.

 

Article 10: Code of Conduct.

 

Your use of the Nintendo DSi Network Service is subject to the Nintendo DSi Code of Conduct, which prohibits all harmful, illegal or otherwise offensive conduct, including but not limited to conduct such as the following:

 

• Making, sharing or playing unauthorised copies of Content on the Nintendo DSi System or downloading it through the Nintendo DSi Network Service.

 

• Making derivatives of Content.

 

• Trying to access another person’s connection with the Nintendo DSi Network Service without permission or trying to access any of our hardware or networks used to provide the Nintendo DSi Network Service.

 

• Doing anything illegal, discriminatory, defamatory, hateful, harassing, abusive, obscene, threatening or physically dangerous in connection with the Nintendo DSi Network Service.

 

The complete Nintendo DSi Code of Conduct may be found at [http://www.nintendo.com.au] and may be revised by us from time to time. It is your responsibility to review the Nintendo DSi Code of Conduct periodically. If you do not have Internet access, please contact Nintendo Customer Service and they will mail you a current version of the Nintendo DSi Code of Conduct, free of charge. If you do not agree to any future changes to the Nintendo DSi Code of Conduct, it is your responsibility to cancel your Nintendo DSi Network Service in accordance with this Agreement.

 

Article 11: Submissions.

 

You should not send to Nintendo any creative or original materials such as ideas for toys, games or other products, or any creative suggestions, ideas, notes, drawings, concepts or other information.

 

Article 12: Protection of Personal Information.

 

Nintendo is committed to protecting the privacy and security of your Personal Information. Nintendo has developed the Nintendo DSi Privacy Policy which may be found at [http://www.nintendo.com.au] and which may be revised by us from time to time, to provide you with information relating to the privacy, security, collection and use of Personal Information you or third parties submit or which is generated through the Nintendo DSi Network Service. Your use of the Nintendo DSi Network Service is subject to the Nintendo DSi Privacy Policy.

 

Specifically,

 

• Nintendo may monitor your use of the Nintendo DSi Network Service and collect any information stored on your Nintendo DSi System. Any Personal Information we collect will be subject to the Nintendo DSi Privacy Policy.

 

• As part of the Nintendo DSi Network Service, Nintendo may provide you with the ability to create and use a friends list where you may store user IDs and email addresses provided to you by others (“Friends List”) and may also allow you to store other personal information on your Nintendo DSi System or the Nintendo DSi Network Service. We do not represent the security of the contents of such Friends List or personal information from unauthorised third parties. You must take steps to clear your Friends List and any personal or sensitive information contained on your Nintendo DSi System or the Nintendo DSi Network Service if you sell or otherwise transfer your Nintendo DSi System. If you do not do so or you do not safeguard your Nintendo DSi System from loss or misuse, an unauthorised person or entity could access and use your Friends List or your personal information. In addition, unauthorised persons may gain access to one or more Friends Lists or personal information without your knowledge. Nintendo will not monitor use of or access to individual Friends Lists and it is your responsibility to monitor your interactions, and those of your family, with other users of the Nintendo DSi Network Service.

 

Article 13: Warranties.

 

This provision does not exclude, restrict or modify any statutory provision which implies non-excludable conditions and warranties into this Agreement. To the full extent permitted by law, the liability of Nintendo under such non-excludable conditions and warranties is limited to supplying the Nintendo DSi Network Service again or the payment of the cost of having the Nintendo DSi Network Service supplied again (whichever Nintendo chooses).

 

Otherwise, we provide the Nintendo DSi Network Service, without express or implied warranty, undertaking, inducement or representation of any kind. This means that Nintendo does not guarantee that the Nintendo DSi Network Service will always work properly or that it will be free from viruses, hacks or other harmful intrusions.

 

Article 14: Limitation on Claims.

 

To the extent permitted by law, any claim(s) you wish to allege against Nintendo related to the Nintendo DSi Network Service must be commenced within three years after the date of the claim arising.

 

Article 15: Change, Suspension or Discontinuance of Nintendo DSi Network Service.

 

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

 

Article 16: Limited Liability.

 

Subject to Article 13 and to the full extent permitted by law and subject to any non-excludable statutory condition or warranty, Nintendo's liability to you and any other person:

 

* is limited to the total amount you have ever paid for Points;

 

* does not include punitive, special, consequential or incidental damages (including claims for loss of data, Products, Content or Points);

 

* does not include liability to third parties. For example, if your friend is somehow harmed from using the Nintendo DSi Network Service or the Nintendo DSi System, we are not responsible to you or your friend, or to anyone else. If another person somehow harms you while using your Nintendo DSi Console or Nintendo DSi Network Service, we are not liable to you for that other person’s actions.

 

These limitations on Nintendo’s liability apply to all matters relating to the Nintendo DSi Network Service and the Nintendo DSi System, including your use of the Nintendo DSi Network Service and your use of Products and Content that do not specify other limitations on liability. These limitations apply to any type of claim, including breach of contract, breach of warranty, strict liability, negligence or other tort.

 

If you breach this Agreement, and we or another company or person is harmed by your breach, then you must indemnify Nintendo and its licensors and licensees from all of the losses and costs related to your breach.

 

Article 17: Termination of this Agreement

 

• You may terminate this Agreement by removing Content and Products from the Nintendo DSi Console. If you terminate this Agreement, you will automatically forfeit any rights to Points on your Nintendo DSi Shop Account. Termination of this Agreement will prevent your use of the Nintendo DSi Network Service.

 

• We may terminate this Agreement, or any portion of this Agreement, at any time, for any reason whatsoever. Such termination shall terminate any licenses granted by this Agreement and may prevent your use of the Nintendo DSi Network Service.

 

• If this Agreement is terminated, the following Articles will remain in effect: (i) Intellectual Property; (ii) Governing Law; and (iii) Interpretation.

 

• Any termination of this Agreement will automatically terminate any addendum to this Agreement

 

Article 18: Updates.

 

Nintendo may change this Agreement including the Nintendo DSi Code of Conduct and the Nintendo DSi Privacy Policy, at any time.

 

A current version of this Agreement will be available on the Internet at [http://www.nintendo.com.au]. We will post a message at that web address informing you about a change to this Agreement at least 5 days before the change becomes legally binding on you. If you do not agree to any such change, it is your responsibility to terminate this Agreement in accordance with Article 17.

 

Article 19: Non-Assignability.

 

You are responsible for use of your Nintendo DSi System and the Nintendo DSi Network Service by third parties. You may not assign this Agreement to a third party.

 

Article 20: Governing Law.

 

This Agreement and any claims you may have under it will be governed by the laws of Australia.

 

Article 21: Interpretation.

 

If any part of this Agreement is found to be invalid or unenforceable, that part of this Agreement will no longer apply and will be considered deleted, but that all other parts of this Agreement will remain in effect. We may replace the invalid part by a provision which reflects or comes closest to reflecting the initial intention.

 

Article 22: Definitions.

 

"Agreement" means this Agreement as amended from time to time.

 

"Content" means the software and content, which Nintendo owns, or has the right to use, distribute or sublicense, and which is available for downloading or sent by Nintendo through the Nintendo DSi System or the Nintendo DSi Network Service or is otherwise used with the Nintendo DSi System.

 

"Nintendo" means Nintendo Australia Pty Ltd and any company to which it is related.

 

"Nintendo DSi" means the Nintendo DSi, its successors and compatible systems.

 

"Nintendo DSi Network Service" means the service by which Content, messages, Third Party Data and other data or information is sent, received and distributed to and from your Nintendo DSi System, and includes, without limitation, the Nintendo DSi Shop Service and the use of Nintendo Zones.

 

"Nintendo DSi Shop Account" means a personal account that will be established for you upon acceptance of these terms and the Nintendo DSi Shop agreement, and which applies to your use of the Nintendo DSi Shop Service.

 

"Nintendo DSi Shop Service" means our on line store which offers Content, Third Party Data, Products and other services.

 

"Nintendo DSi System" means Nintendo’s system (including embedded software and accessories) sold and marketed by Nintendo under the Nintendo DSi brand, including any succeeding systems and compatible systems.

 

"Nintendo Intellectual Property" means all the intellectual property rights, that Nintendo owns or is granted a licence to use, and includes, but is not limited to, the intellectual property rights, hardware, software, software codes, documents, know-how and other information that Nintendo uses, owns, or is granted a license to use.

 

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

 

"Personal Information" has the same meaning as in the Privacy Act 1988.

 

"Personal Use" means, for a personal use purpose only, within that purpose, in the form, which is not accompanied by the commercial gain, or monetary or other compensation.

 

"Points" means the points, which you purchase from Nintendo in connection with the Nintendo DSi Shop Service, and which are used to download Content and Third Party Data or to purchase Products.

 

"Products" means any goods or other items other than Content which are available for purchase or licence through the Nintendo DSi Shop Service.

 

"Third Party Data" means software, information, data, messages and other material to which any parties, other than Nintendo, own the copyrights, moral rights, patent rights, trademark rights, and other intellectual property rights to, or are granted a license for, including software and Products made available for use with the Nintendo DSi System.

 

"You" means the individual who accepts the terms of this Agreement.

 

Australia and New Zealand

 

The Nintendo DSi Network Service is operated by:

 

Nintendo Australia Pty Limited (ABN 43 060 566 083) 804 Stud Road, Scoresby, Victoria 3179, Australia Nintendo Customer Service +61 3 9730 9822 Website [http://www.nintendo.com.au]

 

Contact Nintendo Customer Service
on (03) 9730 9822 for Warranty
and Repair information and all other
general enquiries.

 


 

New Zealand customers
please call: 0800 743 056,
Monday to Friday 9:00am to 5:00pm
Australian Eastern Standard Time