If you were put off by KlearGear.com’s ridiculous “Non-Disparagement” fee, which penalizes customers for sharing their bad shopping experiences with the public, another online retailer is apparently trying to go one further, by not only banning customers from saying bad things online, but by also forbidding them from even bringing up the threat of a complaint or a credit card chargeback.
Buried at the bottom of the Terms page for OnlineAccessoryOutlet.com, you’ll find the following insanely overreaching stipulations (bolded for emphasis):
“You agree not to file any complaint, chargeback, claim, dispute, or make any public forum post, review, Better Business Bureau complaint, social media post, or any public statementregarding the order, our website, or any issue regarding your order, for any reason, within this 90 day period, or to threaten to do so within the 90 day period, or it is a breach of the terms of sale,creating liability for damages in the amount of $250, plus any additional fees, damages – both consequential and incidental, calculated on an ongoing basis.”
The Terms also claim the customer agrees that, even after the 90 days are up, the “sole method of dispute resolution in all cases… shall be binding arbitration to take place in New York City, with all expenses paid by the respective parties.”
So if your purchase is late, lost, damaged, broken, etc., and you even make the vague statement of “I’m going to write about this on Facebook” or “I’m going to call my bank to cancel this charge,” Accessory Outlet will tag you for $250. And even if you wait the full 90 days for that period to end, the only way to resolve the issue is by traveling — at your own expense — to New York City for an arbitration hearing.
And this is apparently neither a joke nor an exaggerated policy made in the hope that someone will be too scared of the fine to complain.
One Accessory Outlet customer in Wisconsin was fined the $250 for telling the retailer that she would issue a chargeback on her credit card because the $40 iPhone case she’d ordered hadn’t arrived after 10 days. And then when she refused to pay that fine, it was sent to collections.
The customer has sued Accessory Outlet in a New York state court, arguing that the $250 “debt” she is now being hassled over is bogus. According to the complaint [PDF], the “terms are unenforceable, both because they are unconscionable as a matter of law and because [the Plaintiff] never agreed to them.”
That last claim is the most obvious and the easiest to prove. Though the Terms are on the Accessory Outlet website, at no point in the purchase process is the customer required to check a box or otherwise acknowledge that the Terms have been read. We attempted to verify the Plaintiff’s claim by going all the way through the ordering process (up until actually hitting the “complete purchase” button, of course) and could not find any place in which it was even suggested that we read the Terms before placing an order.
According to the customer, she placed her order on July 6 of this year. Four days later, she received an e-mail saying her order had shipped. The customer then checked the supposed USPS tracking number of her order and found that it had not been received by the Postal Service.
When the item had not been received by July 16, she contacted the company via its website and requested that the order be canceled. Accessory Outlet replied that it could not be canceled because it had shipped.
The customer checked the USPS tracking number again and then replied to Accessory Outlet that she would be requesting a chargeback from her credit card company because she believed the retailer was lying about whether the order had actually shipped.
This is when they told her about the $250 fine that she hadn’t agreed to.
The company told her in an e-mail that not only would she be hit for the $250 penalty but that her account would be sent to a collections agency, which would “put a negative mark on your credit for 7 years and will also result in calls to you home and/or work.”
Accessory Outlet also threatened her with the prospect of “additional fees for any correspondence with your card issuer… billed to you on an hourly basis and a flat rate $50 fee for the dispute or claim.”
When the customer replied that she had the right to contact her credit card company, the retailer replied that she now owed them “damages” and that her account would be referred to “multiple collections agencies.”
After receiving additional, similar e-mails from Accessory Outlet, the customer responded that she was getting a lawyer.
To which the retailer replied:
“Contact your lawyer, spend more time and money if you wish. You will be billed and the amount we bill you for will continue to rise with every email and every second we dedicate o correspondence of any kind pertaining to your breach of the terms of sale. Thank you.”
A subsequent e-mail from Accessory Outlet personally attacks the customer and closes on a menacing tone:
“Read the agreement or have someone competent do so for you since your emails make it clear you did not read the agreement or do not understand the clauses contained therein. You obviously do not know how to use the tracking or are ignoring it… You are playing games with the wrong people and have made a very bad mistake given the legally binding contract we have in place. One we have successfully enforced on many individuals the same we will do with you.”
The customer eventually received her order — nine days after it supposedly shipped — and claims it was defective and unusable. Her complaints to Accessory Outlet received no response.
She seeks to have her alleged debts voided because she did not actively agree to the Terms of Sale, nor was she required to view them. Additionally, the customer claims the terms are unreasonably favorable to Accessory Outlet.
“I want to go online and warn other customers about Accessory Outlet’s unfair terms and shoddy products,” said the customer in a statement. “But I’m afraid Accessory Outlet will claim I owe it more money and try to ruin my credit.”
“Accessory Outlet is using unfair terms hidden in fine print, along with threatening emails, to bully a customer into keeping quiet about her bad experience with the company,” said Scott Michelman, the Public Citizen attorney handling the case. “But terms that prevent a customer from speaking publicly about her transaction and from contacting her credit card company are unreasonable and unenforceable.”