Australia's leading provider of affordable DIY legal kits
Call our Customer Care Specialists on 1300 728 200
   

Legal Forum

Welcome to the FREE AussieLegal Forum

This FREE legal forum is supported by participating lawfirms in your local area.
The information contained in this public forum, and any comments made by the administrators, it's appointed mediators, or members of the public are of a general nature and may not be regarded as financial or legal advice in any way. We recommend that you seek formal advice from a practicing solicitor or licensed financial advisor regarding your particular situation. By registering to use this forum you meet the above criteria and agree to abide by all of the above rules and policies.

To be sure we provide you with the most relevant information to your state, please let us know which state you your legal matter resides in:

ACT  NSW  NT  QLD  SA  TAS  VIC  WA  

AussieLegal recommends this law firm:

  FAQ FAQ  Forum Search   Register Register  Login Login

Settlement Agreement Clause

 Post Reply Post Reply
Author
  Topic Search Topic Search  Topic Options Topic Options
Towley View Drop Down
Newbie
Newbie


Joined: 24/October/2014
Location: Australia
Posts: 10
  Quote Towley Quote  Post ReplyReply Direct Link To This Post Topic: Settlement Agreement Clause
    Posted: 05/October/2017 at 23:59
I signed agreement with a company to pay me for a faulty product they supplied which is subject to a product safety recall -major fault. They paid me the sum but I had left a negative review in Product.com.au website 2-3 months ago which they wanted me to remove. However I don’t feel I really want to as the clause they included is vague and I cannot comply with their request to keep this review confidential when it has been seen by 1000’s of people already who may have copied it or saved it. The clause does not mention anything about deleting or removing this particular review all it says is:

7. Both You and XYZ agree to keep this agreement and the events surrounding it confidential across social media, public forums and review websites both past , present and future

Do I have any legal grounds to refrain from removing my negative review?


Edited by Towley - 06/October/2017 at 06:40

citizen-joe View Drop Down
Senior Member
Senior Member


Joined: 09/October/2005
Location: Australia
Posts: 317
  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 06/October/2017 at 02:27
What did you sign when you received the payout for the faulty product? Was that payment conditional on you refraining from making any product reviews or removing any that you had made?

Any chance of a link to your review?

Towley View Drop Down
Newbie
Newbie


Joined: 24/October/2014
Location: Australia
Posts: 10
  Quote Towley Quote  Post ReplyReply Direct Link To This Post Posted: 06/October/2017 at 06:35
Originally posted by citizen-joe

What did you sign when you received the payout for the faulty product?


A settlement agreement i.e titled "Settlement dated 26th Sept 2017" but this clause is the only one I am concerned with. It was part of a solar system that was installed , not the whole system but just one part which they supplied and installed.

Was that payment conditional on you refraining from making any product reviews or removing any that you had made?


They wanted me to remove and I said I would consider it . The clause I have quoted is the only part of the agreement that is relevant however they haven't stated this at all.

Any chance of a link to your review?


Is it necessary to give me advice on my question? How so ? I want the company to remain confidential at this stage.

My point is that since the review is already public to require me to agree to keep this confidential is something that I cannot comply with and therefore the agreement is unconscionable. The clause does not require me to remove or delete the review. Nor does it specify a time limit or deadline for me to take this action.

Edited by Towley - 06/October/2017 at 06:39

Eddy View Drop Down
Senior Member
Senior Member


Joined: 14/December/2012
Location: Australia
Posts: 123
  Quote Eddy Quote  Post ReplyReply Direct Link To This Post Posted: 06/October/2017 at 12:20
If their product was at fault then I don't think they could have legally forced you to remove a negative review of their product before they fix it - they are obliged to fix it anyway but they took the opportunity to bully you into their agreement.

If you subsequently signed an agreement then you will have to remove your website review comment (you signed it saying you would....past, present and future...past being the website posting). You are correct in that many people have already read your review comment but the intent of the agreement is now all about damage mitigation by the company. Many people won't have seen your comment and they want to put a stop to the possibility of this happening.

So I think you were mis-lead into signing the agreement but now that you've signed it you'll have to comply with it.

Towley View Drop Down
Newbie
Newbie


Joined: 24/October/2014
Location: Australia
Posts: 10
  Quote Towley Quote  Post ReplyReply Direct Link To This Post Posted: 06/October/2017 at 18:07
Originally posted by Eddy

.
If you subsequently signed an agreement then you will have to remove your website review comment (you signed it saying you would....past, present and future...past being the website posting).


The clause doesn't say remove all it says keep confidential, my point is I can't keep something confidential if it has been viewed by others many times and possibly stored in the internet on caches or Google servers. This is beyond my capability to erase completely. The settlement was not for the whole of the installation just a part of it which was something I asked for as an extra that they normally don't offer. The event was because this particular component was faulty and subject to a product recall. The review refers to a wider problem with this particular company not this part. So in effect the event has nothing to do with the review. It is public knowledge that this component is subject to a public recall on https://www.productsafety.gov.au/recalls. I cannot remove this at all as it is legally required to be displayed. The settlement amount is only for this part under $1000, not the whole installation which over $10,000

Edited by Towley - 06/October/2017 at 18:15

citizen-joe View Drop Down
Senior Member
Senior Member


Joined: 09/October/2005
Location: Australia
Posts: 317
  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 06/October/2017 at 20:39
The clause doesn't say remove all it says keep confidential, my point is I can't keep something confidential if it has been viewed by others many times and possibly stored in the internet on caches or Google servers

I think you need to consider the possibility that the company may sue you at some stage. True, you cannot keep confidential something that has already been released, the company must know that, but removing the post now may give you the defence that you did all you could at the time, do nothing and you have no defence.

Towley View Drop Down
Newbie
Newbie


Joined: 24/October/2014
Location: Australia
Posts: 10
  Quote Towley Quote  Post ReplyReply Direct Link To This Post Posted: 07/October/2017 at 03:46
For less than a thousand dollars I don’t think so they would have to prove they have suffered a financial loss.

citizen-joe View Drop Down
Senior Member
Senior Member


Joined: 09/October/2005
Location: Australia
Posts: 317
  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 07/October/2017 at 18:28
I didn't offer assistance for the purpose of starting an argument, I merely said you may be in a better legal position if you were to remove the post.

It is not really about the amount they paid you, but about their possible claimed loss of sales they may attribute to your post. It could cost you a lot of money trying to disprove their claim.

Towley View Drop Down
Newbie
Newbie


Joined: 24/October/2014
Location: Australia
Posts: 10
  Quote Towley Quote  Post ReplyReply Direct Link To This Post Posted: 08/October/2017 at 14:30
So the onus is on me and not them to prove they have lost sales? Can they just come up with an arbitrary figure?

citizen-joe View Drop Down
Senior Member
Senior Member


Joined: 09/October/2005
Location: Australia
Posts: 317
  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 08/October/2017 at 14:52
They can claim whatever they like, for example they could pick a few months where the facts fit their story to show that sales were going up by x% per month, and then show the figures for a month that was after your post showing that they went down.

These figures may have nothing to do with your post, may not be representative, but it will be up to you to prove that their claim is rubbish. How on earth are you going to be able to do that without a lot of expense.

Remove the post and the chances are that they will ignore any action against you.






Edited by citizen-joe - 08/October/2017 at 14:53

 Post Reply Post Reply

Forum Jump Forum Permissions View Drop Down

Want to save money?

Check out our list of do-it-yourself legal kits.

Need formal advice?

Let us help you find a lawyer who specializes in your particular area of law.

Need further information?

Visit our legal forum where you can ask questions and search for similar topics.