Kleargear may not have the right to fine the couple that attempted to purchase an item from the company. The wife wrote the review in 2008 the year of the attempted purchase however there is no record of the companies policy until 2012. Documents like this cannot be retroactive, the new terms on your attempted purchases would not have been agreed upon at the time of the sale. Here is the companies cached webpages starting with the purchase month December 2008.

http://web.archive.org/web/20081219095714/http://www.kleargear.com/termsofuse.html

Then 2012 when the Non Disparagement Clause (NDC) first appears about halfway down the page.

http://web.archive.org/web/20120627211945/http://www.kleargear.com/ termsofuse.html

If you don't want to click here is the snippet, italics emphasis is mine.

"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."

The contract doesn't seem like it would apply due to the dates but libel could matter if the company wanted to take another route. The company could sue for libel but not use the fine.

After the clause it looks like the company is currently within their rights. Whether this practice is ethical or not matters though.

I would say that is definitely unethical and should not stand. In the companies NDC they states (italics emphasis mine):

""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"

I don't see how stifling legitimate claims, claims someone could make and be protected under libel laws, provides "fair and honest feedback". Much like any End User License Agreement (EULA) no sales contract would be a license for a company to do get away with unethical or negligent behavior.

I think I would take my chances in court.

If the complaint is truthful and cleargears motives are for "fair and honest public feedback" then the complaints should stand without fear of fines. This wording prevents libel claims but also legitimate claims from being brought forth. If the companies aim is to stifle negative comments as a whole then the contract seems to be fit for that. They instead could have worded a preventative measure to 'any libelous statements are subject to a fine' to ensure "fair and honest public feedback".

I do not take the NDC to be ethical in its wording, it prevents people from voicing legitimate negative opinions publicly and not preventing "fair and honest public feedback" from happening.

Edit: I didn't know if this was if kleargear could sue for libel, if the couple could get fined, if others could get fined or if the contract is binding or if it is junk. I think I hit all those points but the free speech to me seems to be more important of an issue.

Regardless of free speech, KlearGear.com rejected the contract first. When the Palmers' entered into the agreement not to disparage the company the agreement would have also stated KlearGear.com would be providing goods in exchange for money. KlearGear.com did not do this and violated the contract. Since the contract is null and void, they can't claim the Palmers violated it.

I hope the non-disparagement clause is found to be illegal. Corporations will take over everything if people have no power to fight back.

Just wondering, does this company actually sell products, or just pretend to and then fine their customers?

If the company puts a thing on their site for reviews they should be prepared for negative and positive reports so this is total BS.

The review system exists so the public can give their thoughts on the product/service/idea, positive or negative.

There is a federal protection SLAAP or SNAAP. People have the right to freedom of speech.