Company fines couple $3,500 for writing a negative review when their ToS says you can't write negati - Polidicks

[quote]Way back in 2008, Jen Palmer's husband ordered her a number of trinkets from the website KlearGear.com. … For 30 days KlearGear.com never sent the products, so the transaction was automatically cancelled by PayPal. She tried calling the company but never got through, so she took to the website Ripoff Report to vent her frustrations, saying the company had "incompetent customer service" and "there is absolutely no way to get in touch with a physical human being. Three years later, her husband received an email from KlearGear claiming he owed the company thousands of dollars as a result of the complaint on Ripoff Report. Apparently KlearGear's terms of service contained a clause restricting customers' ability to post negative reviews.[/quote] source: [URL="http://www.ajc.com/news/news/national/company-fines-couple-35k-posting-negative-review/nbwHM/"]http://www.ajc.com/news/news/national/company-fines-couple-35k-posting-negative-review/nbwHM/[/URL]

fuck off

A few things. A company can't fine people, and because they never completed the transaction the person isn't bound to their ToS. Company is going to get fucked up the ass for fraud. EDIT: Also, the bit of the contract they're using to do this counts as something that most people would never read, and so could never be enforced. I forget the specific rule regarding that.

would this actually hold up in court?

[QUOTE=FlubberNugget;42892476]would this actually hold up in court?[/QUOTE] No.

I'm pretty sure that forbidding negative reviews is not only illegal, but a goddamn heresy against mankind. What happens if you ignore criticism and refuse to try and improve? You become modern-day Infinity Ward, that's what.

[QUOTE=ironman17;42892486]I'm pretty sure that forbidding negative reviews is not only illegal, but a goddamn heresy against mankind. What happens if you ignore criticism and refuse to try and improve? You become modern-day Infinity Ward, that's what.[/QUOTE] Or the average deviantArt user.

So apparently it's illegal to tell the truth about shitty customer service. Well played, KlearGear. Enjoy having to repay legal costs to the fellows you ripped off in the first place.

Also the Ripoff Report website wants to charge them $2000 to get their review removed, and this whole situation has fucked the couples credit scores so bad they can't take out a loan to get anything.

[QUOTE=FlubberNugget;42892476]would this actually hold up in court?[/QUOTE] They don't have the money to take it to the court. Ah our Justice System is so perfect

[QUOTE=dwt110;42892520]Also the Ripoff Report website wants to charge them $2000 to get their review removed, and this whole situation has fucked their credit scores so bad they can't take out a loan to get anything.[/QUOTE] who's score?

Funny how some companies think that the ToS lets them do whatever they want. All it can do is protect themselves and their works. Can't keep someone from writing a bad review or from suing.

[QUOTE=Grimhound;42892474]A few things. A company can't fine people, and because they never completed the transaction the person isn't bound to their ToS. Company is going to get fucked up the ass for fraud. EDIT: Also, the bit of the contract they're using to do this counts as something that most people would never read, and so could never be enforced. I forget the specific rule regarding that.[/QUOTE] Companies absolutely can fine people if the fines are explicitly stated in the terms of service/agreement. Credit card companies and banks do this all the time and there's no law that prevents any other type of company from doing it. That being said, the transaction was never fulfilled and online terms of service are rarely(I say rarely because there COULD be a case where an online ToS was deemed a binding agreement, but I was unable to find any) held as binding agreements in court. They should definitely seek a lawyer to sue Kleargear.

[QUOTE=JXZ;42892532]who's score?[/QUOTE] couples

[QUOTE=Gordy H.;42892537]Companies absolutely can fine people if the fines are explicitly stated in the terms of service/agreement. Credit card companies and banks do this all the time and there's no law that prevents any other type of company from doing it. That being said, the transaction was never fulfilled and online terms of service are rarely(I say rarely because there COULD be a case where an online ToS was deemed a binding agreement, but I was unable to find any) held as binding agreements in court. They should definitely seek a lawyer to sue Kleargear.[/QUOTE] Do you have a source on this? Because it sounds absolutely mental that a company can write their own set of rules a customer has to abide by, overriding any national/state legislation I know for a fact this wouldn't hold up in Europe

[QUOTE=Gordy H.;42892537]Companies absolutely can fine people if the fines are explicitly stated in the terms of service/agreement. Credit card companies and banks do this all the time and there's no law that prevents any other type of company from doing it. That being said, the transaction was never fulfilled and online terms of service are rarely(I say rarely because there COULD be a case where an online ToS was deemed a binding agreement, but I was unable to find any) held as binding agreements in court. They should definitely seek a lawyer to sue Kleargear.[/QUOTE] A company can pursue action through the courts to try to obtain that money. They do not possess the ability to fine.

this is utter fucking bullshit we need more true reviews out there.

[QUOTE=demoguy08;42892552]Do you have a source on this? Because it sounds absolutely mental that a company can write their own set of rules a customer has to abide by, overriding any national/state legislation I know for a fact this wouldn't hold up in Europe[/QUOTE] I can't really find you a source because terms of service/terms of use/terms and conditions aren't treated differently from any other contract, legally. Companies(usually only banks, credit card companies and utility providers) in the US often have you read and sign their 'terms and conditions' when you create an account with them. You cannot go to jail for disobeying these terms, but you can have your account terminated, have fees levied against you or in some cases be taken to court. [QUOTE=Grimhound;42892557]A company can pursue action through the courts to try to obtain that money. They do not possess the ability to fine.[/QUOTE] They do not have the ability to 'fine' people in the same sense the government can. They can 'fine' or 'fee' someone, but people aren't legally bound to pay those fines unless a court orders them to. So basically, a person can't go to jail or have their income garnished to pay the fine, but they can have their credit lowered(as credit is managed by private companies and not the government) and essentially be 'blacklisted' from signing up for private services(banking, credit cards, cell service, insurance, etc).

lol really "KleerGear is the worst thing ever, it has horrible support and tries to prevent bad reviews of it." Now fine me, bitch.

[QUOTE=demoguy08;42892552]Do you have a source on this? Because it sounds absolutely mental that a company can write their own set of rules a customer has to abide by, overriding any national/state legislation I know for a fact this wouldn't hold up in Europe[/QUOTE] As said above they can take someone to court over it but they cant forcibly make you pay up. I think in court it comes down to whether or not its reasonable. For example a bank might say you must pay them a £10 charge if you go into non-agreed overdraft and as a result have caused an issue for them. You couldn't put in a TOS that someone owes you $20,000 and their car and expect the court to rule in your favor. Now the really annoying issue that comes into play is that you have to consider is it worth the time and money going to court to fight it rather than just settling on it. Luckily if you go to court and win, you can have them forced to pay all of your legal fees for the case as well (Just as Garry did with the copyright trolls)

Just read through KlearGear's ToU, and I can't find anything about negative reviews.

[QUOTE=FunnyStarRunner;42892736]Just read through KlearGear's ToU, and I can't find anything about negative reviews.[/QUOTE] They appear to have edited it at some point recently. This is what it was in August: [quote=http://web.archive.org/web/20130817144417/http://www.kleargear.com/termsofuse.html]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.[/quote]

Ahh, the old liquidated damages. I'm not really sure how it would work in whatever jurisdiction kleargear is in, but such damages (or penalties - not fines) would be completely unenforceable (and failed to be awarded in a court) in Australia due to the likelihood of it being interpreted as a punishment with no amount considered as compensation for a breach of contract. Not that any credit agency would give a shit. They'd buy up the "debt" and try and recover it in a flash.

[quote]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.[/quote] That's actually funny, because the clause clearly states 'publishing of libelous content'. Writing a bad review based on a truthful experience with the company is not libel.

Holy shit, they ruined their credit rating. wtf - stuff like this shouldn't be possible.

I like thinkgeek/vat19 better lol ToS preventing you from writing bad reviews

Couldn't they counter sue for fraud?

[IMG]http://site.kleargear.com/officetoys/geektoys/computergifts/geekshirts/logo-gr-office-toys.gif[/IMG] Why would anybody ever use this site? It just has a ripoff feel. [QUOTE] At the time of the incident back in 2010, KlearGear had an “F” rating from the Better Business Bureau. Although it now has a “B,” Ripoff Report still has KlearGear complaints posted. No word on if there are any cases similar to the one involving the Palmers.[/QUOTE] They could probably some crowdfunding to have this problem solved.

[QUOTE=.FLAP.JACK.DAN.;42892536]Funny how some companies think that the ToS lets them do whatever they want. All it can do is protect themselves and their works. Can't keep someone from writing a bad review or from suing.[/QUOTE] The issues is this: 1. The company can still attempt to fine them and say that these people owe them a large debt to creditors. Which means, their credit score gets ruined 2. If you can't afford a laywer you can't put this to court. They need to find a lawyer that costs nothing until you win. This should be stupid easy to find since this case would most definatly cause them to win and get a significant award amount for the damage to credit score they caused. The problem is these people don't seem the most financially bright around when they are using really shady websites like "KlearGear" and then make reviews on other obscure websites that nobody knows about and then wonder why they have no money and just assume that they can do nothing but talk to creditors instead of actually getting the right people on the job to fix it. That said its stupid that they even had to run into this in the first place so I don't blame them too much. Just another example of why being financially conscious and a good internet skeptic comes in handy.

What I don't get, is how did they find them? They used paypal, and then the transaction was canceled. Then KleerGear comes back 2 years later to fine them? How did they "fine" them? Paypal actually released their credit infomation to KleerGear? That is pretty scary. Paypal is supposed to protect you from fraud and misuse of your credit cards.