Herod Clauses and Zombie Apocalypse

I am a fan of the radio show, A Way with Words.  Over the weekend, I ran across a clip on their website discussing an experiment run by a company in London to demonstrate the risks of using public WiFi.  The company set up a hotspot that offered free service to anyone who accepted a user agreement.  Buried in the agreement was what the company calls a “Herod Clause,” a promise by the user to assign his or her first-born child to the company for all eternity. Six people accepted the agreement.  Presumably those people fell into one of three categories:

  1. People with no children and no intention of ever having any children.
  2. Lawyers who knew that the clause would be unenforceable.
  3. People who did not read the agreement before accepting it.

Of these, the last one seems the most likely, making it appropriate to include a link to our previous blog entry about the dangers of signing contracts without reading them.

I sent a message to my friend and well known contract wonk Ken Adams, asking if he had ever heard of a Herod Clause.  He pointed me to one of his recent blog entries, “Contracts as a Vehicle for Irreverance,” in which he mentions the London Herod Clause experiment and a couple of other examples of amusing provisions in commercial contracts, including one in the Service Terms for Amazon Web Services.  Amazon Web Services include, among many other things, a collection of products, mostly computer games and software related to games, called the Lumberyard Materials. Paragraph 57.10 of the Service Terms prohibit the use of the Lumberyard Materials “with life-critical or safety-critical systems, such as use in operation of medical equipment, automated transportation systems, autonomous vehicles, aircraft or air traffic control, nuclear facilities, manned spacecraft, or military use in connection with live combat.”  One might wonder when one would be tempted to use online games to operate nuclear facilities or aircraft control systems to begin with, but the terms suggest one possibility — zombie apocalypse — in which case the contract gives relief from the restriction:

However, this restriction will not apply in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

The contract, however, is inexplicably silent with respect to other circumstances that, one would think, would be at least as dire as a zombie apocalypse, such as alien invasions and robot uprisings.  Accordingly, one would be exposed to potential liability if one were to use the Lumberyard Materials for, say, flying manned spacecraft to repel an alien invasion.  To evaluate the significance of that exposure, consider whether the restriction is a covenant or a condition on the license to use the Lumberyard Materials.

If you would like to meet with an attorney to discuss contract terms governing the use of software in operating of autonomous vehicles for the purpose of surviving a zombie apocalypse, please feel free to contact our office.  We probably can’t help you, but we would really enjoy talking to you.  If you have signed a contract with a Herod Clause, feel free to call us. We promise not to laugh at you.  On the other hand, if you would like to include a Herod Clause in one of your contracts, please do not call us. You probably need help, but not the sort we can provide.

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