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Comment by emn13 | Hacker News Reader

That agreement is completely unreasonable.

"In accepting the Goodwill, you hereby release and discharge Tesla and related persons or entities from any and all claims or damages arising out of or in any way connected with any claims or incidents leading or related to our provision of the Goodwill." (etc, with similar language concerning talking about incidents.)

in other words: we'll fix your car for you, but only if you keep quiet about a broadly and unclearly defined set of events, oh, and only if you agree not to hold us accountable for any wrongdoing on our part that's in any way "related or leading to" this agreement.

That's absurd, and shameful, especially the excessively broad scope of the incidents and the fact that even actual wrongdoing by Tesla is protected.

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In other words: you should read more carefully whatever you quote given that the meaning is pretty clear. There is nothing in your quote about keeping quiet and, most importantly, if you don't want to accept the free repair you can still pay. It's really incredible how people pretend to have everything for free, and even when they can actually have it for free they manage to find a reason to complain. I have never ever seen any other car manufacturer paying for the suspensions repairs on a out-of-warranty 100k car.

You should read more completely. As a service to lazy readers such as yourself, I quoted one sentence to illustrate the kind of restrictions imposed, but as you apparently missed, I explicitly mentioned it's just an extract: "(etc, with similar language concerning talking about incidents.)"

The free repair is gracious gesture. But the restrictions imposed in return are nevertheless unreasonable - it's one thing to explicitly note that Tesla is doing you a favor and that the favor is not an admission of guilt, it's quite something else to weasel out of responsibility even if you do turn out to be guilty of something.

> have never ever seen any other car manufacturer paying for the suspensions repairs on a out-of-warranty 100k car.

It happens a lot. You could have just Googled. Manufacturer would pay for the repair, warranty or no warranty, if there was a defect. For example almost all of those 690000 cars were out-of-warranty at the time of the recall:

http://www.nbcnews.com/business/autos/toyota-recalls-690-000...

Tesla using NDA to prevent such situation is so childish. I hope Musk would fire that a-hole who came up with the idea (i really hope it wasn't Musk itself).

Simple Google search brings this by the way, so there are definitely issues:

https://forums.teslamotors.com/forum/forums/model-s-pulls-le...

What important here is that it is not the issues itself that are main risk to the company - after all it is a young car company - it is how the company reacts to them, and such rotten actions like NDA is a really bad style which would cost a lot in the long run. `

Your example is completely unrelated. This was not a recognised defect. If you really think that every car manufacturer does it then it should be trivial for you to find some source where a single car was repaired for free after 100k km for something that was not a recognised defect. You have plenty of time to prove your thesis.

repaired for free after 100k km for something that was not a recognised defect

Not entirely sure what your definition of "not a recognised defect" is if the Tesla fixes aren't one. Nevertheless, many manufactures do similar things:

Chrysler minivan owners may notice that the front wheel bearings on models from 2008 to 2010 are subject to premature wear, so dealers will replace them for free during a vehicle’s first five years or 90,000 miles.

Honda, however, and its upscale Acura division stand out with a half-dozen or more. Because CR’s survey data show that Honda and Acura vehicles, in general, are among the most reliable on the road, the company’s high number of service campaigns suggests it’s been unusually generous to customers

http://www.consumerreports.org/cro/magazine/2014/11/get-your...

>Your example is completely unrelated. This was not a recognised defect.

Many defects before becoming recognized are just some accidental occurrences. Like Tesla suspension issues.

>If you really think that every car manufacturer does it

of course i don't think every car manufacturer does it. Good ones do though.

>it should be trivial for you to find some source where a single car was repaired for free after 100k km for something that was not a recognised defect.

my wife's Honda had paint unusually strongly faded (no rust or any corrosion nor surface damage, just paint itself) at some spot which was repaired for free at low 60K miles (the car was 6 years old at the time, so well out-of-warranty anyway). There is a reason Honda is a top dog in reliability and quality. Such standing behind their own product is a big part of it.

Someone I know had a Dodge which burnt to the ground after the seat caught fire whilst filling with petrol. The car was a couple of months old and in warranty. It took a threat to go to the papers for Dodge to agree this wasn't really ok, and replace the car (who'd want a replacement? Id want my $).

I know of select shift Ford fusion that had a transmission slip problem (spoiler: later fixed by a software update) but Ford refused to acknowledge it as a problem that their own dealership's mechanic acknowledged until much later when they came up with that fix.

Pete didn't want to return the car. He didn't want to sue Ford. He kept getting non-answers for months.

What's shameful is that they need to protect against people taking advantage of their good will in the first place.

If you were the customer in the absence of the agreement, after everything that Tesla had done at no cost, would you have taken them to court? In this case it's arguable that they would gone to court: the troll took to social media only because the agreement disallowed legal action. The troll used every possible tactic to his advantage, including an extreme degree of omission.

This whole ordeal has inadvertently proven exactly why Tesla has this agreement. Lose when you do; lose when you don't. The agreement isn't there for people like me and you, it's there for people like Niedermayer.

Not taking them to court is one thing, not being able to talk about the agreement is another.

Also, note that it's not just a restriction on taking them to court about the repair, but also an indemnification against any wrongdoing in "related" incidents and incidents leading up to the repair - i.e. suppose a known manufacturing flaw results in an accident which appears to be the drivers fault, and Tesla's offers this free repair, you also can't claim any medical bills later when the truth emerges.

It's way too broad.

I haven't seen the full agreement, but grandparent's quote contains no language that prevents the customer from talking about it.

The agreement has this passage in it:

"The Goodwill is being provided to you without any admission of liability or wrongdoing or acceptance of any facts by Tesla, and shall not be treated as or considered evidence of Tesla’s liability with respect to any claim or incidents. You agree to keep confidential our provision of the Goodwill, the terms of this agreement and the incidents or claims leading or related to our provision of the Goodwill. In accepting the Goodwill, you hereby release and discharge Tesla and related persons or entities from any and all claims or damages arising out of or in any way connected with any claims or incidents leading or related to our provision of the Goodwill. You further agree that you will not commence, participate or voluntarily aid in any action at law or in equity or any legal proceeding against Tesla or related persons or entities based upon facts related to the claims or incidents leading to or related to this Goodwill."

Which could easily be interpreted by a consumer as barring them from discussing the whole affair, even with the authorities.

Which led to:

http://www.marketwatch.com/story/safety-agency-chides-tesla-...

> interpreted

There's the kicker: it was written by a lawyer for legal purposes. I could interpret that as Tesla promising me 5 cars; that doesn't change what it legally says.

> You agree to keep confidential

I agree that this is bad. I assume it's there to prevent all of their customers expecting this treatment (which they might not be able to do forever), as well as carefully constructed half-truths appearing on social media (which occurred in this case anyway). Maybe a "full disclosure agreement" would be more appropriate: where you agree that you must disclose all details if you decide to disclose.

The reason someone could interpret it as forbidding them from telling the NHTSA is because that's what it purports to do - it's worded as a blanket ban on discussing the failure. The only reason it doesn't is because that would almost certainly be illegal. Thing is, most customers don't know that and don't want to be sued, which makes writing contracts that appear to do so a sleazy and somewhat effective way of stopping them. That's why the NHTSA is pissed: http://www.nytimes.com/2016/06/10/business/tesla-model-s-nht...

Speaking of sleazy and dishonest, this part of the Tesla blogpost is both: "this agreement never even comes close to mentioning NHTSA or the government and it has nothing to do with trying to stop someone from communicating with NHTSA or the government about our cars" It doesn't mention either because it's a blanket ban on talking about the failure. If Tesla hadn't wanted to make people think they couldn't talk to the government, they'd have specifically permitted it. This is a common enough issue that I doubt their lawyers would've missed it when drafting the NDA.

I agree that the confidentiality agreement was poorly structured. Really the whole fiasco indicates that this agreement was badly worded.

The intent of the document was clearly to prevent the document itself from being used as a weapon against the company. Nevertheless it was used for that purpose.

This is what I think as well. If Tesla banned the troll from speaking, where is the Tesla lawsuit against the troll for speaking?

They can't sue him because he refused to sign the NDA they were trying to get him to agree to, incurring extra cost and hassle just to preserve his ability to talk about what happened. In fact, fans on the Tesla forum have been taking this as proof that he's really just out to destroy Tesla, arguing that if he wasn't just an anti-Tesla troll he'd have taken the 50% discount on repairs and associated gag agreement and that the fact he was willing to pay an extra grand just to be able to discuss it proved this.

This is also why this sentence from Tesla is incredibly dishonest:

"It is deeply ironic that the only customer who apparently believes that this document prevents him from talking to NHTSA is also the same one who talked to NHTSA. If our agreement was meant to prevent that, it obviously wasn’t very good."

Of course it didn't prevent him from going to the NHTSA, because he refused to sign it in order to preserve his ability to talk about it, paying an extra $1,500 to Tesla for the privilege. Anyone who did sign it in the belief that it prevented them from going to the NHTSA is also forbidden from talking about that by the NDA, so we're obviously not going to hear anything from them. Really sleazy, and seemingly par for the course for Tesla PR these days.

Anti-Tesla trolls would normally not go through the trouble of buying a model S and having two model 3's on pre-order.

It's standard practice for out of court settlements to be in full and final settlement and require confidentiality.

we'll fix your car for you, but only if you keep quiet about [it]

I think you're confused about the meaning of 'claims' which in this context means a legal claim; it's not referring to a blog or freedom of speech in any way preventing you from claiming things, just that you won't sue them over it.

AFAIK that is pretty standard "We'll fix it for you if you don't sue us" language.

Standard doesn't mean it's right - and note that it's not just excluding liability over the repair but over a really broad and unclearly defined set of events.

Your quote and your statement don't make sense together.

> but only if you keep quiet about a broadly and unclearly defined set of events

Where are you reading that?

Read the rest of the agreement; the quote is merely an excerpt (which is why I followed it with "etc, with similar language concerning talking about incidents.") - similar language to that of the excerpt restricts other activities, not just claims.

we'll fix your car for you

*for free. The customer can always choose to pay the standard repair cost and not sign any Goodwill waiver.

And that's really sleazy. Tesla may well have done nothing wrong, in which case this is a good deal. But they may also have made a negligent mistake "leading to" the repair, and Tesla might know that - the customer does not.

So by using this excessively broad disclaimer, they gain the flexibility to escape liability not just where they're in the right, but also where they may have made costly mistakes - since clearly the it's in the best self-interest of the customer to accept the deal usually, and by the time they find out Tesla may have tricked them, they've already signed.

That's a disclaimer of liability, not an NDA. It says "you can't sue us", not "you can't talk about it".

This is specifically to avoid court arguments that the free repair is an admission of guilt (which, yes, is the kind of thing that happens in civil cases).

If you read my comment, you'll note that I'm merely quoting a part of the agreement. The full agreement is linked in case you're curious about the NDA terms.

There have been quite a few commenters that haven't bothered to read even my short comment, let alone the (also rather short) agreement, yet still felt qualified to determine that the NDA clauses aren't present. They are.

Personally, due to the overbroad scope I find these liability limiting clauses at least as objectionable as the NDA clauses.

"You agree to keep confidential" is the key phrase.

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