No Contract Contingency Left Behind: Zombies in Amazon’s “Lumberyard”

Forward-thinking deal lawyers draft contracts addressing contingencies that clients might not perceive or address if left to their own devices. Amazon has, however, now taken contingency planning–if I may borrow from esteemed legal scholar Buzz Lightyear—to infinity and beyond.

One of Amazon’s many businesses is Amazon Web Services, and one of the available services from AWS is Lumberyard, a game development system which, according to Amazon, “consists of an engine, integrated development environment, and related assets and tools we make available at aws.amazon.com/lumberyard/downloads or otherwise designate as Lumberyard materials (collectively, ‘Lumberyard Materials’).” See AWS Service Term 57.1. 

So far so good. But then, perhaps recognizing the possibility of dire emergencies requiring use of a video-game development engine, we reach section 57.10 (with emphasis added):

57.10 Acceptable Use; Safety-Critical Systems. Your use of the Lumberyard Materials must comply with the AWS Acceptable Use Policy. The Lumberyard Materials are not intended for use 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. 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.

Here at Texas A&M, my colleague (and Blog Editor Emeritus) Frank Snyder raised some quibbles with this provision’s drafting: “First, why does it apply only to a viral infection and not to bacterial infections, mutation-causing chemicals, or (as in Night of the Comet) weird alien space rays?   And is the last clause (‘likely to result in the fall of organized civilization’) modified by the clause that requires CDC certification, or is that an independent determination that can be made by the judge?”  

All good questions. I’ll also note that the answer to whether a zombie outbreak would constitute commercial impracticability in a sale-of-goods case has just edged a closer to “no.” Apparently, this is precisely the sort of contingency that parties can foresee and should contract around with appropriate force majeure clauses.

What are your thoughts on this significant outbreak of zombie-contingency contracting? Leave your answer in the comments below. H/T to Henry Gabriel via Bill Henning for highlighting this provision.