Online Retailer Says If You Give It A Negative Review It Can Fine You $3,500
from the yeah,-that-sort-of-thing-would-NEVER-backfire dept
Lots of quasi-legal action has been taken over negative reviews left by customers at sites like Ripoff Report and Yelp. Usually, it takes the form of post-review threats about defamation and libel. Every so often, though, a company will make proactive moves (usually bad ones) to head off negative reviews.
Nicci Stevens sends in this report from Salt Lake City's KUTV, which details the actions taken by one company against a dissatisfied purchaser who left a negative review at Ripoff Report.
For Christmas several years ago, Jen Palmer's husband ordered her a number of trinkets from the website kleargear.com. But for 30 days, Kleargear.com never sent the products so the transaction was automatically cancelled by Paypal, Jen said.Kleargear, unfortunately, was not simply bluffing. Up until August 2013 at least (the date of the last crawl by the Internet Archive), Kleargear had this atrocious bit of wording on its "Terms of Sale and Use" page.
Wanting an explanation, Jen says she tried to call the company but could never reach anyone. So frustrated, she turned to the internet writing a negative review on ripoffreport.com.
"There is absolutely no way to get in touch with a physical human being," it says. And it accuses kleargear.com of having "horrible customer service practices."
That was the end of it, Jen thought, until three years later when Jen's husband got an email from Kleargear.com demanding the post be removed or they would be fined.
Non-Disparagement ClauseNice. I'm not sure what part of "fair and honest feedback" includes threatening unhappy purchasers with a $3,500 fine for publicly expressing their displeasure, especially considering Kleargear has made the clause entirely "eye of the beholder" by including the phrase "in its sole discretion." There's nothing "fair or honest" about this policy or the people looking to enforce it.
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.
It's especially shady considering the page has now been yanked by Kleargear. It no longer exists in its sitemap and reroutes to its "Bestsellers" page if the URL is typed directly into the address bar. The "Terms of Use" link simply puts you right back on its generic "Help" page. The nasty clause is gone and it's only gone because Matt Gephardt at KUTV started asking questions.
Why would Kleargear insert such a customer-unfriendly bit of wording into its "terms of sales?" Maybe because its reputation used to be atrocious. (I mean, more so...)
There are many posts in addition to Jen's on Ripoffreport.com as well as other online consumer complaint boards. In 2010, the company was slapped with an "F rating" by the Better Business Bureau for "not delivering products purchased online in a timely manner," says the BBB's website. Kleargear.com today has a "B" rating.This clause makes you question the validity of its shiny "B" rating. (Not that a BBB rating isn't questionable in its own right…) If it's been heading off complaints with borderline extortionary tactics, that "B" is worthless. When Gephardt finally got an (anonymous) response from someone with Kleargear on its "Smile or Get Fined" policy, the person reached defended the $3,500 fee, stating that the threat towards Jen wasn't "blackmail," but rather "a diligent effort to help them avoid the fine."
Obviously, the company doesn't truly believe this tactic is truly justifiable or it wouldn't have memory-holed the page with the non-disparagement clause. Even worse, it's made no move to undo the damage it has already done to this customer's credit by sending the unpaid, completely bogus fine to collections.
According to the Internet Archive, that clause didn't exist in 2008, when Jen wrote her review, so there's no way the company can claim that charge is legitimate, even by its own shady metrics. It actually doesn't appear until June of 2012, suggesting that its battle to raise its BBB rating wasn't going as well as it had hoped, but rather than overhaul its customer service, it decided to bill its way back to the top at $3,500 a review.
Now, it would appear that if you're dissatisfied with your Kleargear experience, you're free to let the internet know about without getting hit with a $3,500 bill... for the moment. The clause may have been removed because the company's currently feeling a little heat, but if it was willing to use this sort of underhanded tactic to quiet unsatisfied customers, then there's a good chance it will put something like this back in its "Terms of Sales" once it feels the worst has blown over.
Or maybe, just maybe, it will finally, after a half-decade, make an attempt to fix the underlying problem.
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Filed Under: fines, kutv, online reviews
Companies: kleargear.com, ripoff report, yelp
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The stupid, it burns!
So you're welcome to post any review, opinion or feedback... as long as it makes them look good. That's not 'fair and honest public feedback', that's unpaid advertising, with one heck of a massive threat if you do otherwise.
Just like the other stories that have been covered on this site about businesses with similar clauses, this shows yet again that any business that feels the need to moderate or control customer feedback, is one that doesn't trust the quality of their product or service, and almost certainly rightly so.
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Re: The stupid, it burns!
I'm writing here to post that I made a purchase from KlearGear.com. That is all I am allowed to say without getting fined.
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Re: Re: The stupid, it burns!
His "wife" is not bound by terms of sale since she didn't bought anything.
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Re: Re: Re: The stupid, it burns!
Perhaps, but allowing his wife to find out about his horrible service clearly violated the retroactive contract with the husband.
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Re: Re: Re: The stupid, it burns!
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Re: The stupid, it burns!
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Re: Re: The stupid, it burns!
Also, NOT visiting their web site should be a violation of their website TOS.
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Re: The stupid, it burns!
"My best friend (or sister or wife or whatever) recently ordered merchandise from Kleargear.com and this is what happened to her..."
The person posting the review didn't actually use the site so there can be no claim that they agreed to any bullshit Terms of Use, and they can't be billed/fined for posting the review, yet the message still gets out about the company and its shitty service.
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Curious
Even so, I'm certain this would not survive the other tests of a valid contract in commerce such as the typical consideration of equal understanding and equivalent value... seems like incurring a liability of thousands of dollars simply from the purchase of small-dollar items would not fit that expectation.
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Re: Curious
Let them file whatever nonsense they want, then sue for damages. Pretty cut and dry.
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Re: Re: Curious
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Re: Re: Re: Curious
You can be a third-party, with specific knowledge if you observed the results of the transaction. The statements here also almost certainly would be ruled as opinion.
Unfortunately the issue is whether or not the defendants can afford to litigate even if they have a high likelihood of prevailing or recovering some/all costs.
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Re: Curious
Both of those reasons let me say that I read somewhere that KlearGear.com has terrible customer service and is overly litigious. I wouldn't mind, of course, but I just can't stand it when I hear that sites such as KlearGear.com might be disreputable because they never delivered the merchandise and also have poor customer service.
Phbbbbb~~~
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Re: Curious
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Re: Curious
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Re: Curious
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Re: Curious
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Of course, I also won't be buying anything from them ever.
If you treat your customers right, your reputation takes care of itself. That's what I've always believed anyways.
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Re:
There is one flaw in this plan. How will you ever know they are a service not to be trusted if you don't hear about it from someone else and haven't had any experience with it yourself?
I have complained before about vendors, mainly because I too wasn't receiving the help I needed from the vendors themselves to rectify the problem I was having. I am tired of buying stuff that a vendor promised would meet my needs, only to find out that they lied or misstated their selling points. Usually I'd contact the vendor first, but in some cases, I couldn't contact the vendor because they didn't publish any way to get in touch with them.
In most cases, vendors will go out of their way to help, even when it is obvious that I am the problem in the equation, but I've run into vendors who don't care; they have my money and even though their product never worked as advertised or has serious flaws which require much more effort on my part to fix, they aren't interested in me any more. Putting poor reviews online which explain the problem, my steps to try to fix it, and how unresponsive the vendor is helps me air my problems and in some cases gets the right people to help me out, but it also helps the community to know what problems may exist with the product and/or vendor.
I've had equally good experiences with companies, and sadly, they tend to not get the praise because everything works fine or they help resolve the problem quickly. While each experience is unique, sometimes just having a heads-up helps when dealing with a company you've never worked with before.
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Re:
For example I have 4 companies I regularly buy computer parts from because I have gotten good value and service (in my opinion) from them in the past. So if I am looking for a new part I will visit their websites for selection, price, and availability.
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Heh, heh. -- NOW you see why I say web-site TOS are NOT legally enforceable!
[ If the rest were legal, then "that clause didn't exist in 2008" is irrelevant because those always claim ability to unilateral change without notice, and no doubt retro-active as well. They're TOTAL lawyerly baloney. ]
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My theory...
Before Google came along Yahoo was the king of search, but afterwards not so much. Yahoo's initial success afforded them the ability to purchase GeoCities, where you hosted your site. But with Google's success, Yahoo's revenues were in decline and they needed to cut costs so they eventually shut down GeoCities and you lost your site, which you naturally blame Google for. So having no where else to turn, you come here to bash them every chance you get. Am I warm?
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Re: My theory...
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Re: Re: My theory...
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Re: Heh, heh. -- NOW you see why I say web-site TOS are NOT legally enforceable!
For example, a court would likely uphold a term that cancels a provided service if the customer performs a charge-back (see Steam), but would slap down a term that states, like here, that you cannot say anything negative about the company or face a fine.
Of course, the other directions of attack are just gilding the lily (terms not in effect at the time of sale, it being a third party who complained, the sale not being completed), but why not pile them all on as we mock them?
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Re: Re: Heh, heh. -- NOW you see why I say web-site TOS are NOT legally enforceable!
The Palmers should take a proactive stance against this company and file a complaint with their state attorney general for consumer fraud, and fraudulent credit defamation, or whatever.
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Re: Heh, heh. -- NOW you see why I say web-site TOS are NOT legally enforceable!
Settle down sparky, most of us knew that ages ago.
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Re: Heh, heh. -- NOW you see why I say web-site TOS are NOT legally enforceable!
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It would be a shame if...
Oops.
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The Steps
Step 2: Fine those who complain about it
Step 3: PROFIT!!!!
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Re: The Steps
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Re: The Steps
Step 1: Steal Underpants
Step 2: ???
Step 3: PROFIT!!!
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Re: Re: The Steps
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Oh myyyyyy
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Re: Oh myyyyyy
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Re:
Protip: Doing business this way will ensure that your business fails. When this was published, you lost hundreds of possible customers, including me and everyone I know.
http://www.techdirt.com/articles/20131113/06112425228/online-retailer-slaps-unhappy-customers-with-3 500-fee-violating-non-disparagement-clause.shtml
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Re: Re:
Nice.
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Re:
We, on the other hand, will freely exercise the right to point a loaded gun at the proverbial feet of our reputation and pull the trigger repeatedly until such time as we have run out of ammunition as is the obvious aim of enacting this policy.
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Let me guess...
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Who?
And I'm pretty sure there's something in the constitution, AKA Politicians toilet paper, that supersedes whatever bovine excrement they added to the end of their terms of sales.
It's right there at the top...hard to miss.
For a company selling on the Internet (I assume)... they pretty clearly have no clue how their medium actually works...
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Re: Who?
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Re: Who?
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Re: Re: Who?
Yup; a speech restriction is acceptable in an employment contract (also because they're generally of the "don't say anything about projects in development/private information that you have access to as an employee" type), but in a sale.
The closest you can get that would be acceptable to the hypothetical court is a "if you behave badly in game/on forums/etc we reserve the right to cancel the service".
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Hmmm
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Credit rating
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Re: Credit rating
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Re: Credit rating
This could get pretty interesting. Criminal acts are enough to pierce the corporate veil.
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Unsolicited
Further contact with be considered harassment as I have asked for contact to cease, and will be reported as such.
Any further emails you send means you agree to stop.
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But they didn't buy anything...
Aside from the fact that such dickery wouldn't be enforceable anyway, according to the article they never received any product and the transaction was cancelled. Seems to me no sale means no sales contract.
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Re: But they didn't buy anything...
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Re: Re: But they didn't buy anything...
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So really, this kind of anti-consumer TOS is just a natural extension of the court's anti-consumer logic. After all, arbitration is often already rigged heavily against you, since the company picks the arbitrator, and the arbitrator has an incentive to rule in the company's favor so that the company keeps on picking them to arbitrate disputes.
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Re:
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FYI: kleargear affiliations
TRUSTe -- questionable itself IMHO
thefind.com -- via a link titled "upfront" (bottom menu).
Bain Capital is an investor in thefind; that should tell you something.
... plus a bunch of logos of big-name and no-name companies you may know, as if to imply endorsement.
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It will be back up on their page in a month.
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Don't Fall for the Bullying Tacticts!
They would need to file suit, which includes serving the defendent, and then win a judgement in court. Until then this person would owe nothing. They are just trying to bully. The collection agency is a joke. Tell them not to call under the Federal Fair Credit Reporting Act. If they persist *they* can be sued. If they try to report to credit agencies simply dispute and you will win.
To avoid court there would have to be arbitration agreed to in the contract. They can not just arbitrarily impose fines.
They are hoping to scare people. Don't let them!
And as far as any libel / slander, the truth is always a defense, and you are always entitled to your opinion. Neither are actionable.
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giving a hand
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One less ripoff ripoff
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Hilarious.
No seriously. If you failed to read the terms (you know, that chunk of text you "Next" through without reading a single word) before using the service, you have no right to get pissy when those terms are held up by the provider.
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Re: Hilarious.
Are you a KlearGear employee?
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Re: Re: Hilarious.
-Said no one ever.
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Re: Re: Hilarious.
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Re: Hilarious.
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Re: Hilarious.
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Paypal doesn't automatically cancel transactions
I also think there's something wrong with credit reporting companies being able to ruin a person's credit by relying solely on a reporting business. Doesn't there have to be verifiable proof of some kind? Otherwise, think of all the jerky businesses or unscrupulous employees acting on their own reporting FALSE INFORMATION. If this article is true and the customer didn't receive any of the order, then the transaction wasn't completed and no payment could be expected and no FALSE REPORTING to deliberately screw someone's credit. Grrrrrr! THAT's the most worrisome (terrifying) aspect of this situation, the thought that someone can deliberately ruin my credit by reporting false information to credit agencies. Yeah, I'm repeating myself, lol.
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Not a valid contract...
They are not in a position to fine anyone anything nor seek out a 3rd party to render a bad credit rating. If I were them I would immediately apologize, have her rating fixed and hope she does not nail their butts to the wall.
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TRUSTe fails us yet again!
According to TRUSTe, a website displaying the TRUSTe seal must provide and *follow* a stated privacy policy. When you review all the other facts, it is clear that KlearGear did not honor it's own privacy policy.
Consider the following:
(1) The person making the purchase did not agree to the June 2012 Terms of Sale and Use, they agreed to the Terms of Sale and Use at the time of purchase.
(2) The person making the post (his wife) did not agree to the Terms of Sale and Use as she did not make the purchase.
(3) KlearGear started displaying the TRUSTe seal around Janurary of 2012.
(4) KlearGear started providing notice of the $3,500 legal fee after April 2012 (after use of the TRUSTe seal had already started).
The basis for the fee would be if Mr. Palmer agreed to the terms of the fee and also had taken action in violation of the terms. However, we know those terms where not provided at the time of purchase and he wasn't the one that submitted the post. Hence, not only is the fee invalid, but by KlearGear providing personally identifiable information to a third-party (the collection agency), KlearGear had violated the published privacy policy. KlearGear continues to use the TRUSTe seal even today on it's website.
Normally, this should mean TRUSTe will "resolve" the privacy dispute through their feedback system. However, this situation is even worse and only goes to further highlight how useless the TRUSTe seal is--Kleargear.com does not even appear in the TRUSTe directory of companies authorized to use the seal! While the image search website tineye.com makes it easy to find Kleargear.com's use of the seal along with that KG has used it for almost 2 years, TRUSTe has done nothing to enforce it's trademark. There is no sign of an pro-active step taken by TRUSTe to address either use of the seal or violation of privacy policy. Instead, TRUSTe has published "TRUSTe Alert" asking people to file a report. But to fill out the fields of the report, you must first have a piracy dispute with the company. Simply misuse of the seal is not enough.
techdirt really should be investigating TRUSTe as part of this article. Why didn't use of the TRUSTe seal protect Mr. Palmer's private information from being disclosed to the collection agency when the fee was never agreed to? Why is KG able to use the seal for nearly two years without being part of the TRUSTe directory? What is TRUSTe doing *pro-actively* to keep situations like this from taking place? Why should anyone trust a website that has the TRUSTe seal anymore than they should "trust" KG?
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Anti-SLAPP Legislation
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Re: Anti-SLAPP Legislation
They sent a demand, the couple didn't give in, company sends demand for $3500, couple doesn't pay, company turns the bad debt over to collection agency.
Now the couple has ruined credit, has to fight a collection agency & credit reporting company. They face all sorts of undue burdens before they can pay more money to bring a lawsuit against the company that seems to be cutting and running.
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dirtbags
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Fine to all those who don't do business with me
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terrible!!
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Lawyering
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Re: Lawyering
At no point would the company have to bring lawyers into it, but if the two being shaken down wanted to fight back, they would have to get a lawyer to do so, and that gets expensive fast unless they could find one willing to work for free, even if the case was decided quickly.
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Its true you suck
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Why Utah?
Ironically, many cults believe the same - including catholics, jews and muslims. In fact, their holy books go so far as to condone slavery, rape and genocide.
But that's religion for you.
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She blogged on Ripoff Report
Obviously not answering phones or completing a transaction is bad customer service as well bad for them as an trading entity. But not a rip off as rip offs go... and they didn't refuse her service, they failed to proceed, which is a break down of sorts...
She has the right vote with her feet and the choice of where it is that she chooses to spend her cash and on what.... but not to attempt to disaffect a traders viability simply because good help is hard to find...
So in short; everything costs, her - her husbands credibility for her spleen venting rant and probably the credibility of the vendor for their over reaction... as well my time for sitting here and engaging with you all, cheers;-)
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What are the credit agencies doing?!
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Strange retailers demands
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Your acceptance of the sales contract
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Unbridled Offensive Crookedness
How can a body stand it?
http://neer-do-well-hall-of-infamey.blogspot.ca/
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BBB issues Kleargear alert
http://neer-do-well-hall-of-infamey.blogspot.ca/
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BBB issues alert on Kleargear
http://neer-do-well-hall-of-infamey.blogspot.ca/
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KlearGear, Judge, Jury, Executioner
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Exposing Criminal Fraud
http://neer-do-well-hall-of-infamey.blogspot.ca/
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Have you seen their returns policy?
Customer 'service' like this is what killed commerce in Michigan. I predict that Grandville will become another Detroit. All because of this company.
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KlearGear
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At KlearGear
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Not surprised
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The REAL quest should be....
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Not enforceable
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Real Reviews From Real Lawsuits
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Webdesign
marketing compaign
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It's back!
http://www.kleargear.com/termsofuse1.html
scroll down to:
Non-Disparagement Clause
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Re: It's back!
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Very very bad service. Non techinacal and non educated staff. Very poor repairing services. So any one c don't go their and waste mony and time.
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