- Montana law treats this kind of non-negotiated and non-negotiable boilerplate as a disfavored “contract of adhesion,” and subjects it to heightened court scrutiny. The courts may refuse to enforce such language if it’s outside the consumer’s reasonable expectations or if it’s unduly oppressive, unconscionable, or against public policy.
- Free speech — especially free true speech — is an important federal and state public policy. Non-disparagement clauses like the one KlearGear has been trying to use against the Palmers purport to negate or evade this important public policy in exchange for the doubtful privilege of doing business with a company that can’t tolerate criticism, even if the criticism is true and accurate.
- Montana contract law provides that a “liquidated damages” clause that provides for a penalty like the $3,500 charge KlearGear is trying to collect from the Palmers is only valid when the circumstances of the case show it would be very, very hard to calculate and prove the actual damage caused by breach of the contract.
Here’s a copy of the Palmers’ complaint:[gview file=”/wp-content/uploads/2013/12/Palmer-v-Kleargear-Complaint.pdf”]