Nintendo 3DS Service User Agreement and Privacy Policy

Last updated: 10 December 2013

THE FOLLOWING IS AN IMPORTANT LEGAL AGREEMENT.

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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 Australia Pty Ltd ACN 060 566 083 of 804 Stud Road, Scoresby, VIC 3179, Australia. In this Agreement, Nintendo Australia Pty Ltd will be referred to as “Nintendo”, “we” or “us”.

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 your Nintendo 3DS System and the “Nintendo 3DS Services” (as defined in Clause 1.2 below).

1.2 Definitions

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

“Active Mode” refers to the mode during normal operations of your Nintendo 3DS System.

“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 at its direction which contain funds to be transferred to your Shop Account.

“Local Wireless” refers to an electronic communication method allowing your Nintendo 3DS Systems to send 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 message 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, either commercial or non-commercial content, of Nintendo and Third Party Partners of Nintendo which is provided and distributed in connection with the Nintendo 3DS Service, 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 from time to time through internet connection or any other electronic communication method supported by the Nintendo 3DS System whether cable or wireless, in any telecommunication technology, including, but not limited to, wireless internet connection Shopping Service, 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 sold and marketed by Nintendo

“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, 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 cooperation 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).

"Privacy Policy" means the policy set out in Clause 3 of this Agreement.

“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. Third Party Partners means third parties which Nintendo authorizes to provide Network Content.

“User-Generated Content” refers to 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 Service (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 from other users of a Nintendo 3DS System or (b) operates to prevent any User Consent 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. However, you accept responsibility for your use and for anyone else’s use of the Nintendo 3DS Services through your Nintendo 3DS System, if you allow them to use it.
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, and all other stored sensitive information (i.e. information which can identify you) 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 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 or usage fees along with all costs for the necessary equipment when accessing or using the Nintendo 3DS Services, including any fees and charges for internet connection that automatically takes place in Active or in Sleep Mode (see also Clause 2.2 below).

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 your sole responsibility. 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 third party content or User-Generated Content, Nintendo reserves the right to delete or to block access to such content at its own discretion by way of the User-Generated Content Restriction System or otherwise

If you post, send or otherwise make available User-Generated Content through any Nintendo 3DS Service you grant Nintendo a worldwide perpetual 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 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 make sure that the User-Generated Content you upload, post, send or otherwise make available through any Nintendo 3DS Service, does not infringe the rights of others, such as privacy rights or intellectual property rights. If you post, send or otherwise make available photos, images or videos displaying other people, or personal information of other people you must obtain their permission beforehand.

You agree that copyright in any Mii character which you create will vest in Nintendo upon creation.

1.5 Indemnity

You agree to indemnify and hold Nintendo, its affiliates and related corporations harmless from and against any loss, liability or claim (including reasonable legal fees) arising out of or in connection with your breach of this Agreement, your use of the Nintendo 3DS Services including without limitation use or communication of any User-Generated Content you upload or content provided by Third Party Partners.

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 any unauthorised device. 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. Nintendo may remove content deriving from the unauthorised technical modification of the hardware or software of your Nintendo 3DS System.

Nintendo may also from time to time 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 from time to time 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 Partners

Nintendo may allow Third Party Partners to provide Network Content, including Shopping Service Products, for the Nintendo 3DS Services.

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. Other than providing the licence set out in Clause 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 Prohibited Conduct

In using the Nintendo 3DS System and the Nintendo 3DS Services you are prohibited from:

Engaging in any harmful, illegal or offensive conduct:
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.
Being involved in any fraud-related activities including (but without limitation) 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 any Network Content or games, music or images on the Nintendo 3DS System.
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, 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 permission or trying to access any computers, hardware or networks of Nintendo or of any third party without 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 on the rights of others, including intellectual property or privacy rights of any party; (c) any unsolicited or unauthorised advertising or promotional materials (e.g. "spam"); (d) content which personally identifies any third party without their consent; (e) content displaying any third party without obtaining their consent or (f) content of which you have disguised the origin.
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.
Infringing any of the Nintendo Intellectual Property.

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 Clause 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 for 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 in its sole discretion the assign its rights under this Agreement 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. If, however, you commit a serious breach, Nintendo is not required to provide you with such prior warning. Serious breaches include, but are not limited to, a breach of Clause 1.9 of this Agreement. Such termination will terminate any licence granted in this Agreement and will 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 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, Clauses 1.5, 1.8, 1.12, 1.15 and 1.16 will remain in effect.

1.12 Nintendo's Liability to You.

This provision does not exclude, restrict or modify any statutory provision which implies non-excludable conditions, warranties or consumer guarantees into this Agreement. To the full extent permitted by law, the liability of Nintendo under such non-excludable conditions, warranties and consumer guarantees is limited to supplying the Nintendo 3DS Services again or the payment of the cost of having the Nintendo 3DS Services supplied again (whichever Nintendo chooses).

Otherwise, we provide the Nintendo 3DS Services, without express or implied warranty, undertaking, inducement or representation of any kind. This means that Nintendo does not warrant that the Nintendo 3DS Services will always work properly or that they will be free from viruses, hacks or other harmful intrusions.

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

does not include punitive, special, consequential or incidental damages (including claims for loss of data, Shopping Service Products, Content or funds);
does not include liability to third parties.

Except in relation to non-excludable conditions, warranties or consumer guarantees, these limitations on Nintendo’s liability apply to all matters relating to the Nintendo 3DS Services and the Nintendo3DS System, including your use Network Content and Shopping Service Products. These limitations apply to any type of claim, including breach of contract, breach of warranty, strict liability, negligence or other tort.

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. Any such changes of the terms and conditions of this Agreement become valid if you accept the updated Agreement. If you do not accept the updated Agreement, 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 void, invalid or unenforceable, that part of the Agreement will no longer apply and will be considered deleted from the Agreement, but that all other parts of the Agreement will remain in full force and effect. You agree that we may replace the invalid part by a provision which reflects or comes closest to the initial intention.

1.16 Governing Law

You agree that this Agreement and any claims you may have under it will be governed by the laws of Australia, without reference to conflict of laws principles.

2 Specific Applications and Communication Methods

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

This Clause 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 Clause 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 from time to time, 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 Clause 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 by 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 the funds credited to your Shop Account with regard to the former country settings are blocked and you are not 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.

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 obtain 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 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 Accountand will not be entitled to a refund for any unused funds.

In addition to our rights under Clause 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, whereupon 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 for a refund for any unused funds credited to your Shop Account.

2.1.7 Changes to the Shopping Service

Nintendo may modify or 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.

2.2 SpotPass

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

(i) system updates;

(ii) important 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 such costs you must 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 opted-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 Personal Mii.

By using StreetPass, no connection fees or charges are incurred 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.

If you do not want your Friends to see your online status, presence information and the play history, you can disable this feature.

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 for 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 appropriate 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 Nintendo 3DS Service (see Clause 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 appropriate 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 to access Nintendo Zone where Nintendo and/or its selected partners may provide commercial or non-commercial information on your Nintendo 3DS System. Nintendo will not send you unsolicited commercial messages without your consent.

2.8 System Transfer

“System Transfer” is an application allowing you a limited right to transfer certain data and content from one Nintendo 3DS System to another through internet communication or Local Wireless communication.

When using the System Transfer you are only allowed to transfer data between systems owned by yourself; you are not allowed to transfer data between a system owned by yourself and a 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 Clause 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 Clause 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 respects the privacy rights of its users and recognises the importance of protecting their personal information. We have developed this Privacy Policy to provide you with information relating to the privacy, security, collection and use of information you submit through the Nintendo 3DS Services.

By selecting the “I Accept” option to accept the terms of this Agreement, you agree and signify your consent to your personal information being collected, processed and used in accordance with this Privacy Policy. This includes information that has been collected in the past in order to provide the service you requested.

If you allow your children to use the Nintendo 3DS Services, by selecting the “I Accept” option you agree and signify your consent that the personal data of your children is collected, processed and used in accordance with this Privacy Policy.

Nintendo also handles personal information in accordance with the Nintendo Australia Privacy Policy which can be viewed at www.nintendo.com.au/privacy. The Nintendo Australia Privacy Policy contains information about how you may access and seek correction of your personal information, how you may complain about a breach of privacy law and how Nintendo will handle such a complaint.

In particular, you agree that

we may collect any of the information listed and described in clause 3.2.1
we may use the collected information for any of the purposes listed in clause 3.2.2
we may share the information collected about you with Nintendo Co. Ltd., Nintendo’s parent company located in Japan and Nintendo of America Inc., an affiliated company located in the United States adhering to the “Safe Harbour Principles”;
if you ever link your Shop Account to your Club Nintendo Account, we link all information collected in connection with your Club Nintendo Account to the information collected in relation to your Shop Account and we can use the linked information in accordance with this Privacy Policy.

3.1 PARENTS PLEASE READ: PROTECTING CHILDREN’S PRIVACY

Before allowing your children to use the Nintendo 3DS Services, we strongly recommend that you educate them on the importance of not sharing any personal information about themselves with other Nintendo 3DS users your children do not know personally. In particular, we recommend that you tell your children not to use personal information for any nicknames on games, user names in chat rooms, or any other applications that use the Nintendo 3DS Services.

You must setup the Nintendo 3DS Services for your children, and supervise your children’s use of the Nintendo 3DS Services at all times. If at any time you want to stop your children’s use of the Nintendo 3DS Services, please use the parental control functionality.

3.2 Information Collected and its Uses

3.2.1 What Information We Collect

In connection with the Nintendo 3DS Services we may collect

- your name (first and last name),

- your address,

- your email-address,

- your birth date,

- your gender,

- 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), and

- information about the way you use the Shopping Service, including your purchase history, information on Shopping Service Products you have viewed, the software you have registered on your wish list and recommendations, game ratings made by you, the game code of applications to be transferred and the funds credited to your Shop Account; if you use the credit card in the Shopping Service, we will store the number of your credit card separately according to the rules issued by the credit card provider.

3.2.2 How We Use the Information

The information we collect is mainly used to provide the Nintendo 3DS Services.

In addition, we may use the information about the way you use the Nintendo 3DS System and the Nintendo 3DS Service (such as your play and purchase history) for commercial analysis and for marketing and market research purposes, so that we can optimise our products and services, tailor our products and services to satisfy your requirements and customise the advertising and offers displayed in the Shopping Service to satisfy your requirements.

Furthermore, provided you have opted-in to receive commercial information such as marketing messages or commercial applications such as demo versions or trailers via the Nintendo 3DS Services, you also agree that we may use the information to tailor the commercial information to satisfy your requirements. Please note that you only receive such commercial information if you consent to it.

If you do not want your Friends to see your presence information or the play history, you can disable this feature.

3.2.3 Web Beacons and Cookies

Certain Nintendo 3DS System online applications may use a common internet technology called “Web beacons” (also called “Web bugs,” “action tags,” “pixel trackers,” or “clear GIFs”), which are small graphic images placed on a Web page, on a Web-based document, or in an email message, designed to collect certain information and monitor user activity. We may use Web beacons to collect information such as IP address, MAC address, the URL of the page the user comes from, and the time the Web beacon is activated (such as when you view the page, advertisement, or email containing the Web beacon). We may use the information collected through Web beacons, for example, to determine how to improve the Nintendo 3DS System applications by seeing which areas, features, and products are most popular; to personalise the Nintendo 3DS Services.

Certain Nintendo 3DS System online applications may use cookies, which are small text files that are placed on your Nintendo 3DS System. These files identify your

Nintendo 3DS System and record data about your visit so that when you return to a certain application, the application recognises your Nintendo 3DS System and can personalise your visit. Cookies may be linked to your transaction history, online game play or other information. We may use information collected by cookies, as well as other tools such as log files and Web beacons, for example, to determine how to improve the Nintendo 3DS System applications by seeing which areas, features, and products are most popular; to personalise the Nintendo 3DS Services and make recommendations based on downloaded products; and to complete transactions you have requested.

3.3 Linking your Club Nintendo Account

You can link your Nintendo 3DS System to your Club Nintendo Account if you are a registered Club Nintendo member. Club Nintendo is available in some countries, but not in all. For more information please visit the Club Nintendo websites. If you link the accounts, the Club Nintendo Privacy Policy which can be found on the Nintendo website will apply.

If you link your Nintendo 3DS System to your Club Nintendo Account, any information stored related to your Club Nintendo Account will be linked to information stored related to your Nintendo 3DS System.

3.4 User Communications

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

3.5 User-Generated Content

Some of the Nintendo 3DS Services may allow you to use nicknames, create a user ID and interact with other gamers. We strongly encourage you not to use your own name or any other information about yourself (such as your address, your email address or your telephone number) or any third party in any such services or communications. Posted information may become visible for third parties; see also Clause 1.4 above.

3.6 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.

3.7 Receiving Commercial Information

If you consent to receive commercial information, such as marketing or advertising messages, and commercial applications, such as demo versions and trailers, you will receive such commercial information about Nintendo or third-party products. To indicate your consent you can opt-in to receive such commercial information when prompted during the initial boot-up sequence of your Nintendo 3DS System or at any other time later.

You can withdraw your consent to receive commercial information any time.

3.8 Deleting your Information

If you do not want us to use your personal information as outlined in this Privacy Policy, you can revoke your consent to the use of the data any time by sending an email to nintendoaustraliaprivacy@nal.nintendo.com.au. We will delete your personal information in accordance with your request. The deletion of personal information may lead to a termination of this Agreement and may prevent you from using the Nintendo 3DS Services.

3.9 Contact Us

Please feel free to direct any questions or concerns regarding this Privacy Policy by sending an email to nintendoaustraliaprivacy@nal.nintendo.com.au.