Website Terms Breach The US Constitution

Firstly, we never thought we would see the day we were able to write that headline. It is one thing for a website to have onerous terms, (some do), but to actually breach your own Constitution – that is really drafting some terrible terms.

The website in question is called, a US based website that sells geek toys and stocking fillers for Christmas. (Given their actions we decided not to link to them.)

They inserted into their terms and conditions a clause which stated –

“Non-Disparagement Clause

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

Should you violate this clause, as determined by 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.”

So basically:

1. Kleargear decided whether a comment made by a customer had a negative impact on Kleargear.

2. Either the comment was removed within 72 hours or Kleargear would bill you $3,500.

3. If you did not pay within 30 days the debt would be handed to a debt collection agency – so your credit rating would be destroyed.

Apart from being straightforward fraud this clause also managed to fall foul on the First Amendment of the United States Constitution, (where Kleargear is based).

Not only that, but Kleargear also retrospectively used the clause against a customer who had left a previous negative comment because goods ordered never arrived.

Kleargear have now removed the offending clause and are keeping a low-profile, (not something they would normally want to do in the lead up to Christmas.

So, it is probably a good idea to have properly drafted website terms and conditions. The number of people who actually read them before purchasing would surprise you. These careful customers tend to be older and more cautious. However, once you have won their trust, they are more likely to come back and buy again.

We all make mistakes, but a lawyer did almost certainly not write this clause.

Though the ensuing negative publicity has certainly damaged Kleargear’s reputation, and possibly future.

As Christmas fast approaches please occasionally take time to read the terms and conditions before ticking and moving on to buy – though you are unlikely to find anything so awful.

However, what you may also find is some cut and paste work. We have come across references to Boden and other well-known companies in terms and conditions on other websites. All clearly the work of some cut and paste “borrowing”.

Though it is not all depressing – Gamestation, (now part of Game) inserted an “Immortal Soul” clause a few years ago, the clause gave Gamestation the right to your immortal soul. Those that read the clause and ticked the opt-out box received a free £5 gift voucher. Gamestation’s little joke was done to highlight how few people read terms and conditions.

Our own variation of this was to insert the line, “Free case of beer if you read to here” in the terms for one of our software products – not a single claim over a 6-month period. (Sadly the line has now been removed).

See, it does pay to read them.

Happy shopping.

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