Contracts, often seen as serious and rigid documents, can sometimes contain clauses so surprising that they look like an outright joke. Here is a look at a few of these unusual contract clauses, which are bound to interest contract management professionals.
1. iTunes and nuclear non-proliferation
Apple's terms and conditions contain a surprising clause about the use of its software products, such as iTunes and Apple Media Services. The clause specifies that users undertake not to use these products for any purpose prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear weapons, missiles, or chemical or biological weapons.
Although it seems unusual in the context of entertainment and media software, this clause reflects Apple's determination to comply strictly with international regulations and export control laws. It also highlights how important it is for companies to make sure their products are not used for harmful or illegal purposes, even if the likelihood of such use through software like iTunes seems extremely low. Its inclusion in Apple's terms and conditions is a striking example of how companies can anticipate and guard against improper uses of their products.
2. Microchip and the right to inspect without warning
Before 2012, Microchip, known for its microcontrollers and development solutions, had included in the end user licence agreement (EULA) for its free integrated development environment (IDE), MPLAB X, a clause that caused serious concern among developers and the companies using its products.
This particularly intrusive clause provided that Microchip's authorised representatives had the right to inspect, announced or unannounced, the premises of software users, and to audit their records and inventories relating to use of the software. Such an inspection could take place at any time, with the aim of ensuring compliance with the terms of the agreement.
The absurdity of the clause lay in its potential to intrude on the privacy and confidentiality of companies. It gave Microchip an almost unlimited right of access to company premises, raising major concerns about the security and confidentiality of sensitive information. The clause was all the more surprising for being included in a EULA, a type of document most users accept without close scrutiny.
Faced with a negative reaction from the community and from professionals, Microchip removed the clause in the later version of MPLAB X released in 2012. That removal marked an important step in raising awareness of the implications of EULAs, and of the need for technology companies to strike a balance between protecting their own interests and respecting the privacy and security of their users.
3. Van Halen and the banishing of brown M&Ms
Van Halen's requirement about brown M&M's has become an almost legendary anecdote in the rock world. Contrary to what you might think, this odd request was not a rock star's whim but a shrewd safety test. On arriving at each concert venue, the band asked for a bowl of M&M's with no brown ones in it. The precise demand had a purpose: to test how carefully the organisers had read the band's instructions. If a brown M&M's was found, it indicated that other crucial aspects of the contract, notably the technical and safety requirements, might have been overlooked. Though it looked trivial, the ploy was therefore a precaution to keep concerts safe, particularly in smaller towns where the infrastructure might not have suited the band's needs.
4. Amazon and the zombie apocalypse scenario
Amazon took a humorous approach by including a specific clause in the terms of service for its Lumberyard game engine. Lumberyard, a video game development platform offered by Amazon Web Services, allows developers to create rich, interactive online games. The clause in question, often mentioned in the media, stated that the restrictions on using Lumberyard for life-critical systems, such as medical devices or transport systems, would not apply in the event of a zombie apocalypse.
Amazon worded the clause as follows: "This restriction will not apply in the event of a viral event (certified by the Centers for Disease Control and Prevention or a successor body) causing human corpses to reanimate and to consume human flesh, blood, brain or nerve tissue, and likely to bring organised civilisation to an end." The inclusion was clearly meant to be humorous, playing on the popularity of zombie culture in the media and entertainment.
5. GameStation and the immortal soul clause
The case of GameStation, a British video game retail chain, is a perfect illustration of why online terms and conditions should be read carefully. On 1 April 2010, GameStation amended its terms of use by adding a clause providing that anyone buying products on its site that day, without clicking a specific link, would surrender their immortal soul to GameStation. The full clause read: "By placing an order via this website on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant us a non-transferable option to claim, now and forever more, your immortal soul." The experiment, later revealed as a joke, caught out 7,500 people who signed their souls over to GameStation. A link was provided to opt out of this sub-clause and receive a £5 voucher, but few people noticed the clause, underlining just how few of us actually read the terms and conditions we sign up to.
6. The Herod clause: giving up your firstborn for Wi-Fi
The Herod clause, an experiment run in London, highlights the dangers of careless use of public Wi-Fi. In this study, several British people unknowingly agreed to hand over their eldest child in exchange for free Wi-Fi access in a café. The clause, included in the Wi-Fi terms and conditions of a café in central London, stated that the service was provided only on condition that "the recipient agrees to assign their most senior child for eternity". Six people fell into the trap during the experiment, which aimed to raise awareness of the importance of IT security. The study found that, within 30 minutes, 250 devices had connected automatically to the Wi-Fi hotspot, allowing the company to harvest sensitive user data.
Entertaining though they are, these examples highlight how important it is to read and understand contract clauses carefully. They remind contract management professionals that, even in the serious world of law, a touch of humour and absurdity can slip through, offering a unique perspective on the nature of our legal commitments.