Stupid Terms and Conditions – Should They Be Binding?

He spent so much time writing those Terms and Conditions.  You owe it to him (and yourself) to read them!

He spent so much time writing those Terms and Conditions. You owe it to him (and yourself) to read them!

How often do you read Terms and Conditions, End-User License Agreements, Privacy Policies, etc.?  The reality is that you don’t.  I hardly do, either.  These types of click-through agreements are binding on you, though.  What are we missing?  And what are we getting into?  One user is finding themselves at the receiving end of a $3,500 lawsuit.

Negative reviews hurt … YOU!

In the case of the users of Kleargear.com, you agreed to a wonderful provision in their Terms and Conditions that bargained away your ability to publish negative reviews.  Yes, they prohibit you from making any action that “negatively impacts” their business.  Since this was reported in Mashable, it appears that they have changed them.

What is awesome about the story is that when the reviewer asked the review site, ripoffreport.com, to remove the post they were held up for an additional $2,000.  At the tail end of this, Kleargear reported the delinquency to a credit reporting company.  The TV station that is investigating this is reporting that you get charged $50 when you dispute a charge to Kleargear.

First off, as a consumer assistance pitch, I would recommend directing your attention to my friends at Thinkgeek.com, who treats their customers better than this alleged treatment.  Apart from that, they are great and right in the same space as this offending website.

Beware of contracts you don’t read

A few years ago a dentist sought to prevent, through some standard contracts, negative reviews.  The dentist was using Medical Justice’s provided contracts to enforce some sort of “privacy compact” between the dentist and the patient.

The contract also went so far as to assert an assignment obligation on the poster as to the copyright in the post.  There was some question back when the lawsuit was filed as to whether the contract was even enforceable.

The patient had no bargaining ability.  The customer of Kleargear had no bargaining ability.  The law, at least with click-through agreements, has generally said that your ability to walk away from the deal is enough bargaining power.

The problem is that you want the stuff, they have the stuff, and you are right there.  Just like a kid looking at a cake on the counter.  Would they stop to read anything before diving into the cake?  I don’t think so.

Stop fighting, please

Brands who fear their customers are like children in front of a failing dike.  Every little leak requires a new finger.  It is a losing fight.  There is no way to get ahead.  Trying to fight the flow of social is even worse.

There are so many wonderful websites out there.  Ripoffreport is just one of the so-called sentiment aggregators.  I say so-called, because if you go there they are aggregating bad sentiment.  If you tried to monitor all of these sites for bad postings you would need to add full time staff.  You can’t do it.

Even brands whose reputation is the gold standard have bad reviews sitting on those sites.  Some are from alleged employees even.  Some are from customers who were denied a claim because of their own doing.  The reality is there is so much noise there that it is hard to get to the signal.  I don’t know many consumers that turn to those sites as a primary source.

Trust consumers, and avoid the Streisand Effect

Remember the Streisand Effect?  When she objected to pictures of her estate being posted online she tried to get them removed.  The publicity surrounding her actions increased the visibility to those pictures and ensured that they were seen by so many more people.  The wikipedia page for “The Streisand Effect” even has a nice picture of the estate.

I think Kleargear is in much the same situation.  I had never heard of these folks.  Actually never had the need to go anywhere but to my friends at ThinkGeek.com.  Now that I know they are out there, I doubt I will ever frequent their site.  I think all the readers of the Mashable article will come to the same conclusion.  Since I am not a Kkeargear customer I can say all sorts of bad things about them.

At the end of the day, riding this social media wave requires going with the flow and taking the bad with the good.  If you are getting a flood of negative reviews look at why you are getting them.  That is where the bigger problem is.  Stop trying to band-aid the wound.  Figure out why you are bleeding.  It is harder, but so much more efficient.

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2 Responses to Stupid Terms and Conditions – Should They Be Binding?

  1. Brian says:

    Thanks for sharing.

    ‘“I have read and agree to the Terms” is the biggest lie on the web.’ here’s a useful website: http://tosdr.org

    Here in the UK I think legal disputes over Ts&Cs will side with the customer, but big corporations can scare consumers into paying up without cases going to court.

    And in the case of ‘making any action that “negatively impacts” a business’ – surely if you word your criticism constructively then you can argue that you’re trying to actively improve a business when it falls below your standards.

    • rmbohanek says:

      Thanks for the comment.

      I am so amazed when businesses treat the symptom of bad reviews and don’t try and figure out the underlying cause. I have even heard from product managers when their review rating was low that the reviews should just be removed.

      The flip side of this is the laziness exhibited when drafting these things. Copying and pasting is so rampant it is not unusual to see clauses that don’t even apply to you. Biggest offender? Why am I agreeing to not export dual use technologies when all I want to do is shoot some aliens? Ridiculous.

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