As captured on ; terms may have changed since.
Reviewed fields
For each field: the reviewer's category, then the words of the captured document. Where the category is silent, no provision on that field was extracted from the captured text, and nothing is quoted. Every category, with its count, is listed on the data page.
Delegation clause (who decides whether the clause is enforceable)
Reviewed category: to-arbitrator-except-procedural
If you or Nintendo file a Claim in arbitration or court without complying with all the requirements in Section 7, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing ... Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. ... As limited by the FAA, this Agreement, and the applicable Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim in arbitration and to grant whatever relief would be available in a court under law or in equity, including the power to determine all questions of arbitrability. ... Courts will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
Company’s fee promise
Reviewed category: reimburses-filing-fee
Arbitration Fees. Except for the circumstances outlined in Section 7(G) and for Mass Arbitrations (as defined in Section 7(I)), to the extent the initial filing fee for the arbitration exceeds the initial filing fee for a lawsuit, we will pay the difference in fees. ... counsel for the parties must engage in a single mediation of all remaining Mass Arbitrations, with the mediator’s fee paid for by Nintendo.
Fee or cost shifting against the consumer
Reviewed category: frivolous-or-rule-11-only
To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
Pre-filing requirement
Reviewed category: mandatory-condition-precedent
You and Nintendo will make a good-faith effort to negotiate for 30 days the resolution of any Claim ... (“Informal Resolution Period”) ... If you or Nintendo file a Claim in arbitration or court without complying with all the requirements in Section 7 ... the other party reserves the right to seek relief from a court to enjoin the filing and seek damages
Mass-arbitration terms
Reviewed category: staged-bellwether
If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Mass Arbitrations” ... counsel for the parties will select 20 Mass Arbitrations to proceed in arbitration as a bellwether
Small-claims carve-out
Reviewed category: available-standard-carve-out
Claims ... that are properly asserted in small-claims court (provided that the small-claims court does not permit class or similar representative actions or relief)
Opt-out
Reviewed category: general-but-class-waiver-survives
The parties waive their right to file a class action or seek relief on a class basis, whether in court or arbitration. ... You have the right to opt out of the arbitration requirement in this Section 7 by sending written notice of your decision to opt out ... within 30 days of purchasing the Nintendo video game console. ... If you send timely written notice containing the required information, then the arbitration requirement in this Section 7 will not apply to you or Nintendo and the parties will settle any Claims on an individual basis in accordance with Section 10.
Unilateral modification
Reviewed category: silent
No provision on this field was extracted from the captured text.
Scope
Reviewed category: broad-reaches-affiliates-and-third-parties
This is an agreement (the “Agreement”) between you and Nintendo of America Inc. (together with its affiliates, “Nintendo” or “we” or “our”) ... This Section 7 applies to all Claims between you and Nintendo. A “Claim” is any dispute, claim, cause of action, or controversy (excluding those exceptions listed below) between you and Nintendo, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, for which either party wishes to seek legal recourse and that arises from or relates to this Agreement, the Console, or the Software or Claims related to the validity, enforceability, or scope of the arbitration provision or any portion of it.
Confidentiality of the arbitration
Reviewed category: protective-order-or-confidentiality-agreement
you and Nintendo agree to cooperate to seek from the arbitrator or relevant court protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of any discovery.
Shortened limitations period
Reviewed category: silent
No provision on this field was extracted from the captured text.
Severability if the class waiver is struck
Reviewed category: whole-clause-void-if-class-waiver-struck
If any court or arbitrator determines that the class-action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in this Section 7 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
Counsel or representation restrictions
Reviewed category: silent
No provision on this field was extracted from the captured text.
Mass-arbitration numeric trigger
Reviewed category: bellwether-then-release-to-court
Stated term: “25 or more” Claimant Notices — recorded as 25
The trigger is conditioned on the claimants sharing, or coordinating, counsel.
If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Mass Arbitrations” and will be treated as mass arbitrations according to the AAA’s Mass Arbitration Supplementary Rules