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Negative online reviews can cost you big money


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#1 Leurgy

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Posted 25 May 2014 - 08:37 PM

Am American couple has been billed $3500 USD and taken to court for posting a negative review on ripoffreport.com about not receiving delivery of products they ordered from http://www.kleargear.com .

 

https://ca.finance.yahoo.com/news/french-company-fight-judges-ruling-over-utah-customers-221548875.html

 

 

Jen Palmer posted a critical review about Kleargear.com on RipoffReport.com after her husband never received two gifts he ordered for her, prompting Kleargear.com to notify the couple in 2012 that they had 72 hours to remove the negative review or pay $3,500 because it violated the non-disparagement clause.

The couple refused, saying the clause was not in effect when the items were purchased and the terms violated the First Amendment. They also note RipoffReport.com has a policy of not removing posted reviews.

KlearGear.com notified credit bureaus of the couple's failure to pay, which led to a poor credit rating that delayed a car loan and prevented them from securing a loan for a broken furnace, according to the couple's suit.

 

If you read the website's Terms of Use you will see a link to a further page that contains the Non-Disparagement Clause. If you buy something from this company through their website you agree not to complain publicly by completing the purchase even if you don't like or don't even receive your purchase.
 

 

From kleargear.com's Terms of Use:

 

 

Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

 

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

 

In essence, you are forced to pay for the company's legal fees and court costs to sue you further to determine how much you actually owe them for violating their terms of use. This takes "libel chill" to a whole new level.

 

Will this become the new normal, discouraging public comment about goods and services by putting such terms in the fine print that hardly anyone reads but everyone should?


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#2 NickAu

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Posted 25 May 2014 - 08:46 PM

 

Will this become the new normal,

Yes I think so. People have no idea what is in some terms and conditions in most things, And as 1 line says, By clicking yes you agree to be bound by the terms and conditions, And 1 of those terms may be, You here by agree that we can treat your personal information as we see fit, We can sell it, share it, or trade it in any way and with anybody we want.

And by clicking yes or next you just agreed to that.

 

 

In essence, you are forced to pay for the company's legal fees and court costs to sue you further to determine how much you actually owe them for violating their terms of use.

No you are not forced. You knew this, It's clearly stated, You agreed to it by clicking yes or next.

 

Its like people who install free 3rd party software in Windows click yes to everything without reading anything, Then complain when they get infected with who knows what. They call it Browser Hijacking or Malware or Pup's and it would be if it was installed without your agreement.

 

By clicking next you here by agree to download XXXPC Optimiser and any other addons and 3rd party software during install and any updates as we see fit, You also agree that any 3d party software we install during silent updates can install any software they want.

Hey you agreed to it. You can always decline or say no to the TOS.


Edited by NickAu1, 25 May 2014 - 09:35 PM.


#3 mjd420nova

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Posted 25 May 2014 - 09:41 PM

These types of clauses and exceptions have been hidden  in many of those multi-page agreement to terms on more sites than you think, usually just a expiration date of the freebie whatever.  Retail sites have  free reign too so it literally would pay to read what you agree to.



#4 NickAu

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Posted 25 May 2014 - 09:55 PM

 

An insurance law professor recently pointed out that “Insurance is the one product where you can’t find out what you’re buying until you’ve bought it.”

http://www.quiatondisability.com/tags/insurance-policies/



#5 bludshot

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Posted 27 May 2014 - 03:33 PM



No you are not forced. You knew this, It's clearly stated, You agreed to it by clicking yes or next.

 

Its like people who install free 3rd party software in Windows click yes to everything without reading anything, Then complain when they get infected with who knows what. They call it Browser Hijacking or Malware or Pup's and it would be if it was installed without your agreement.

 

By clicking next you here by agree to download XXXPC Optimiser and any other addons and 3rd party software during install and any updates as we see fit, You also agree that any 3d party software we install during silent updates can install any software they want.

Hey you agreed to it. You can always decline or say no to the TOS.

 

That's an oversimplification. I think its ridiculous to merely blame the user as if the providers aren't doing something lame. You (should) know that many of these installers use intentionally deceptive practices. Things are not clearly stated. Have you seen the ones where it's like "I agree to the terms of service for this program and I want you to install some garbage too"?

 

They want you to think Oh well I have to agree to the terms to click next right? Or Avast antivirus that tries to sneak google chrome in there? [I personally don't fall for those things, because I inspect everything closely - but it's not "clearly" stated anymore].

 

Also, many websites, companies, etc, have clauses that say "We can change this agreement at any time without notifying you". So you may use a game or service (meaning literally you NickAu1), and think that you have smartly read the terms before accepting them, only to find that they changed them on you 2 weeks ago, and your continued use signifies acceptance of them.

 

People should be annoyed at these things, and companies who have PUP's in their installers should be called out on it and scorned for the practice. Governments should serve the people, and they should have legal systems that protect the people against bullcrap that corporations are trying to pull over on people, regardless of if the person technically accepted the policy.


Edited by bludshot, 27 May 2014 - 08:55 PM.


#6 NickAu

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Posted 27 May 2014 - 06:27 PM

 

They want you to think Oh well I have to agree to the terms to click next right?

Yes, I was with a bank that changed TOS, they sent me a letter saying the TOS has changed, By using this account after the 23 of May 2012 you agree to be bound by the new TOS that can be found on our website www.mybank.com.au/TOS. What if I dont have a PC?

 

I changed banks.

 

 

That's an oversimplification. I think its ridiculous to merely blame the user as if the providers aren't doing something lame.

Again yes I agree, But you may find a court wont.  Remember Clicking Next or yes you are entering into a contract with whoever, You agreed that you read and understood the TOS.

 

Hmm I wonder. I never fully read or understood my Home Loan contract. I wonder if I have to abide by it?

These places spend big bucks on Lawyers to write these TOS and by clicking Next or Yes they have a almost watertight case, And even if they dont they will drag your @ss thru court for years till you cant afford to pay lawyers, then to add insult to injury, Because you lost the case they get costs awarded and you owe them a truck load of money. Sometimes the little person wins, but not often.


Edited by NickAu1, 27 May 2014 - 06:29 PM.


#7 the_patriot11

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Posted 27 May 2014 - 11:30 PM

wow think ill start reading those terms a little better-and not buying from companies such as this. In fact, I may just write a negative review about this company because of this clause and send it to that ripoffreport site-and they cant do anything about it cuz ive never bought anything from said company lol.


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#8 NickAu

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Posted 28 May 2014 - 12:51 AM

 

Should you violate this clause, as determined by KlearGear.com in its sole discretion

See thats the kicker, as determined by KlearGear.com in its sole discretion.  They decice not you. And you agree.

 

I guess the moral of this story is,

Read the TOS.

Understand and know what you are agreeing with.

If you dont like it click no and go elsewhere.


Edited by NickAu1, 28 May 2014 - 12:59 AM.


#9 NickAu

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Posted 29 May 2014 - 08:13 PM

Ok heres what Terms and Conditions can do. This was on TV here last night watch the full story and pat special attention to the clause they use. Its 2min 56 seconds in.

 

This link is to an Australian TV station ( ninemsn)

 

This young family thought they were buying a dream home.

But as their new building began to take shape, something wasn't quite right.

Without telling them - the developer paved their paradise and put up a parking lot.

Statement from Landmark Group's lawyers (Antunes):

"Without prejudice negotiations to resolve this matter are currently being conducted by each party's lawyers.

"Our client made an offer to Mr and Mrs Bowring and is awaiting their counter offer.

"We are instructed that our client denies Mr and Mrs Bowring's account of events including the price differential quoted between the two apartments which is entirely inaccurate."

http://aca.ninemsn.com.au/article/8852389/off-the-plan-nightmare-leaves-family-heartbroken


Edited by NickAu1, 29 May 2014 - 08:14 PM.


#10 NickAu

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Posted 25 June 2014 - 08:45 PM

 
KlearGear must pay $306,750 to couple that left negative review

On Wednesday, the judge awarded $306,750 in compensatory and punitive damages plus attorneys fees to Jennifer and John Palmer, who wrote their review in 2009. KlearGear lost in a default judgement in federal court in Utah in May 2014.

 

http://arstechnica.com/tech-policy/2014/06/kleargear-must-pay-306750-to-couple-that-left-negative-review/
 



#11 myrti

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Posted 26 June 2014 - 03:40 AM

A few interesting points here:

Over three years later, her husband John Palmer received an e-mail demanding that the review be deleted within 72 hours or that he pay $3,500 as he was in violation of the company’s “non-disparagement clause” of its terms of service. However, such a term did not appear in the Terms of Sale and Use that the Palmers had agreed to when they placed their order in 2008.

(bold is mine)
So apparently this didn't get thrown out because it's illegal and/or imoral to have such a clause but simply because there was no such clause in the contract the Palmers agreed to at the time.

The couple also wanted the judge to rule that John Palmer had not agreed to this “non-disparagement clause,” which is in violation of the First Amendment of the Constitution.

I wonder how this is handled in the US, here it is very clear that any article in a TOS going against jurisdiction is automatically void... and Apple can complain as much as they want.
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#12 Leurgy

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Posted 26 June 2014 - 06:30 AM

Actually, this wasn't thrown out, the Palmers won a Default Judgement because the company failed to show up in court to defend itself and its actions. In that case, the plaintiff is awarded whatever they ask for.

 

As far as jurisdiction, we all know that the U.S. firmly believes that their laws have jurisdiction anywhere in the world.


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#13 NickAu

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Posted 26 June 2014 - 06:24 PM

 

Actually, this wasn't thrown out, the Palmers won a Default Judgement

 

KlearGear must pay $306,750 to couple that left negative review.



#14 Leurgy

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Posted 27 June 2014 - 10:24 AM

All they have to do now is collect. That may not be easy to do.


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#15 NickAu

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Posted 17 July 2014 - 08:33 PM

Here's another one.

 

 

A French blogger has been fined €1,500 ($2,434) after being sued for writing a negative blog post about a restaurant.

Caroline Doudet was sued by the restaurant's owner because her blog post featured highly on Google searches for the restaurant, Il Giardino in Cap-Ferret, southwest France.

"I was really stunned and disgusted, and of course I will worry now [whenever I] write a negative review," Doudet said of the effect of the case in an e-mail to Wired.co.uk. "I regret the article, because it's so much noise for nothing.

 

French blogger fined €1,500 for writing negative restaurant review

 

.


Edited by NickAu1, 17 July 2014 - 08:35 PM.





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