Monday, December 23, 2013

Vinotemp imposes a horrible, anti-consumer “non-disparagement clause”

In 2007, I purchased a Vinotemp wine cooler. It is a large, costly, two-door appliance capable of maintaining hundreds of bottles of wine at an appropriate temperature for long-term cellaring. I have generally been pleased with the product since I bought it. This morning, I became concerned that it was no longer holding the correct temperature. Fortunately, it turned out to be working just fine—my thermometer just took longer than I expected to show the correct temperature inside the unit.

In the meantime, however, I went to Vinotemp’s web site to research warranty and service information. I was surprised to read this:

Non-Disparagement Clause
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 Vinotemp, its reputation, products, services, management or employees.

Should you violate this clause, as determined by Vinotemp 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.

The above terms and conditions are the only ones governing this transaction and Seller makes no oral representations of any kind. These Terms and Conditions can only be modified in writing, signed by both Purchaser and Seller. 12/13

This block of doublespeak was familiar to me; it’s the same non-disparagement clause that KlearGear used to suppress unfavorable reviews of their products. Basically, the clause says that if a customer makes unfavorable statements about the product, the company will bill the customer for legal fees to seek removal of the unfavorable statements, and will submit those fees to a collection agency if they’re not paid. KlearGear did just that. The KlearGear situation was ably covered by Ken White at Popehat and the Consumerist. Subsequently, Public Citizen filed a lawsuit on behalf of the couple affected by the clause.

Legal issues aside, the use of such clauses is incredibly hostile to customers. Vinotemp’s products are expensive (often thousands of dollars), and are used to protect valuable wine (often tens of thousands of dollars’ worth). Would you want to make such a purchase knowing that if something went wrong, Vinotemp might try to prevent you from telling others about your problems? Would you want to make such a purchase knowing that other people with problems might have been prevented from discussing them publicly?

The way to maintain a positive image in the marketplace is to provide good products and services to your customers, not to threaten them with legal and financial harm. I call on Vinotemp to remove this offensive clause from their terms and conditions, and to waive it for past customers who “agreed” to it. Until they do so, despite my good experience with their product, I am forced to discourage other wine lovers from purchasing Vinotemp wine coolers.


Note: According to the Internet Archive, Vinotemp’s non-disparagement clause was not present as of December 9, 2013, nor any earlier date, suggesting that it is a recent addition. Since I purchased my unit in 2007, I will consider any attempt by Vinotemp to collect damages based on my statements to be knowingly fraudulent, and proceed accordingly.


Update (12/23/2013): I received the following prompt reply from Diane [Redacted], Director of Sales and Customer Care at Vinotemp:

On behalf of Vinotemp, I would like to say how thrilled we are that you are happy with your purchase and have enjoyed years of wine storage with your Vinotemp unit.

While we appreciate your comments and concerns, I have asked our Marketing Coordinator to please address your concerns regarding same.

Further updates as they become available.


Update (12/23/2013): Wine enthusiasts at CellarTracker and Wine Berserkers seem thrilled about the Non-Disparagement Clause.


Update (12/26/2013): Reddit too!


Update (12/28/2013): Welcome Wine-Pages and GardenWeb as well!


Update (1/28/2013): I received an email today from Diane at Vinotemp, asking me to remove her full name. As a courtesy, I have done so. I also expressed to her my disappointment that a non-disparagement clause (now called “HONEST FEEDBACK”) remains in Vinotemp's Terms and Conditions, and that the Marketing Coordinator has not responded to my inquiry.


Update (2/1/2013): Despite Diane assuring me again on 1/28 that the Marketing Coordinator would respond, I have yet to hear from her. In the meantime, the Cato Institute's Overlawyered blog is on the case!

2 comments:

  1. Vinotemp has updated their clause, seems even more Draconian to me, per this thread ...

    http://www.wineberserkers.com/forum/viewtopic.php?f=1&t=93490

    Here's a good one. Check out how they've modified and renamed their Non-Disparagement clause to "Honest Feedback" and changed the terms slightly as well. I suspect they got so much negative press from here and other sites they've slightly changed their tune...though not by much.

    HONEST FEEDBACK: 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 Vinotemp, its reputation, products, services, management or employees, unless you: (A) have first communicated with Vinotemp, and (B) taken any unresolved issue heard by an independent mediator with ADR Services in Los Angeles, CA. Should you not follow this process, Vinotemp in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question, until after mediation. If the content remains, in whole or in part, you will immediately be billed US$3,500.00 for your share of the mediation costs, and legal fees associated with establishing the mediation. 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.


    Here's the old one for ease of reading/comparing.

    Non-Disparagement Clause
    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 Vinotemp, its reputation, products, services, management or employees. Should you violate this clause, as determined by Vinotemp 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.

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  2. it's a sad state of affairs, when a company either has such attrocious products, or servers, as to necessitate this kind of language in a sales contract. Yeah, no way am I buying a Vinotemp. The court of public opinion is generally a very useful one for helping resolve legitimate issues.

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