Thank you for your supporting comments Teneo
www.traders-hideout.com - Delay in withdrawing funds
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Thank you for your supporting comments Teneo
PART 1 of 3 (Browsewrap & Clickwrap Contracts )- Without prejudice
For the benefit of readers & moderators/without prejudice. These are just a few pointers that have been thrown together for general discussion/consideration. I make no apology for the length of this entry…..because it is IMPORTANT! to everyone.
Having now aligned their counterclaim to the recently found company Terms of Service, I am able to shed some more light on the subject. First of all, let’s look at Browsewrap pages.
Abstract:
The company have failed to demonstrate a valid & assented online contract between it and myself which is in the form of a browsewrap page on their main website. The use of a browserwrap page as their cornerstone
mechanism for contract assent is questionable if not unenforceable. Such unenforceability is supported by case law evidence as in (Zappos 2012) and others. The defendant’s terms of service are also inconspicuously
located and submerged as a mere abbreviation at the bottom of their incomplete web page, and separate to the Trading Platform download, or any other “Service Promotions”. The defendants’ website is evidently
structured in an unfair manner as to misguide customers in their heavy use of the term FREE relative to their onerous Terms of Service. These terms of service are abbreviated to TOS on their website, and do not appear
on a purchaser’s computer screen unless he or she scrolled down to display the ‘submerged’ clause. Drawing on similarities to Zappos 2012 & others, The Terms of Use is inconspicuous, buried in this case at the end and
bottom of every THP webpage after other incomplete links. The incomplete website/trading platform never directs a user to the Terms of Use. No reasonable user would have reason to click on the abbreviation TOS.
1. Belated Claim & Use of Terms of Service (TOS)
a) This belated claim alleges that I have a contract (see Boilerplate contract: Standard form contract - Wikipedia, the free encyclopedia) with Traders Hideout by virtue of their online webpage Terms of Service.
b) I am liable for "promotional Services" including a training fee which amounts to the total funds plus an additional amount, calculated @ an arbitrary $2008.00 per hour, which now makes me the alleged DEBTOR! and severely out of pocket.
In fact, when I actually showed the company counterclaim to fellow member(s), this was the response I got off one member:
“The things he talked about in his letter, I have never heard one word of this during all the time I’ve been with TH. Never one word.”
Before looking at the Terms of Service per se (next entry), let’s look at the packaging of their so called contract. The Traders Hideout TOS "Terms of Service" page is commonly referred to as a Browswrap page as opposed to a "Clickwrap" page - both have legal and distinct differences. As with everything, there is a great deal of available information on the subject. One contributor (Eric Goldman (How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked - Forbes) pretty well sums it up as he re engineers the terms including browsewrap user agreements, which he affectionately calls “not a contract”.
2. Browsewrap & Clickwrap
a) A browsewrap clause purports to bind the user of a website to a contract created by the user's mere browsing of the website. It is often unlikely that the user even viewed the browsewrap clause, much less assented to it. The browsewrap clause assumes the user's knowledge of and consent to the browsewrap contract.
b) A clickwrap agreement (also known as a "clickthrough" agreement or clickwrap license) is a common type of agreement often used in connection with software licenses. Such forms of agreement are mostly found on the Internet, as part of the installation process of many software packages, or in other circumstances where agreement is sought using electronic media. The name "clickwrap" came from the use of "shrink wrap contracts" commonly used in boxed software purchases, which "contain a notice that by tearing open the shrinkwrap, the user assents to the software terms enclosed within".
The Traders Hideout page is clearly a “Browsewrap Page”.
`Browsewrap Opinion & Case Law: According to the majority of commentators including (Ed Bayley eff.org, 2009) the use of browsewraps agreements is unfair to users, who generally are surprised by these “contracts” that were never brought to their attention. Accordingly, courts increasingly judge it to be unfair to hold website users accountable for terms and conditions of which a reasonable Internet user would not be aware just by using the site.
As with clickwraps, the key issues are often notice and opportunity to review the terms. Courts are especially skeptical where service providers do not place links to terms, or references to them, in conspicuous locations so as to notify the user that they even exist. Unlike other media, the draw of the Internet rests heavily on providing users instant access to incredible amounts of information. As a result, it is not surprising courts may find it unreasonable to expect users in this environment to scroll and scour every inch of a webpage, searching for links labelled “Terms and Conditions” or “Privacy Policy.” Such behaviour runs opposite to our instincts on the Web.
https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service
Other sites inc. opinion/case law:
1. IP: Effective terms of use agreements
2. Are Browsewrap Agreements Enforceable in New Jersey?
3. Your Terms of Use Might Be Illegal | Inc.com
4. Browse-Wrap License Agreement Not Valid
5. Rebecca Tushnet's 43(B)log: Browsewrap fails to bind customer to individual arbitration
6. How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked - Forbes
Suffice to say I would advance the suggestion that Case Law is very much against Traders-Hideout in that they do not meet the burden of showing that the terms of service were adequately communicated and ACCEPTED. As in Ajemian v. Yahoo! in May 2013 and Zappos 2012 which, whilst not exhaustible in example, are of particular interest. It seems safe to conclude that any court that would invalidate a click-wrap agreement (Ajemian v. Yahoo!on) on these grounds, would look even less favourably on a browse-wrap. https://medium.com/laws-of-the-digital-domain/7b0bb2437dac.
I hear THP shouting “but this is all outside Israel and is contrary to our Governing Law & Jurisdiction clause under our Terms of Service and doesn’t apply”. Fear not, a recent Israeli case Judge gave that very subject a mention as well. This was the case of a Forex platform provider in the case of Malka v Ava Financial. Certain statements of the court are extremely important for non-Israeli companies entering into clickwrap or browsewrap agreements with Israeli customers. I appreciate it is the opposite customer/company relationship in my case. However, the court (Judge Ruth Ronen) stated that while "non est factum" arguments with respect to signed agreements must be interpreted restrictively, a party relying on a contract must produce a signed document evidencing the counterparty’s agreement. In an online setting, a party’s intent to enter into a contract can be established by showing that such party was informed of (i.e., read) the terms of the agreement and actively expressed his consent to be bound by them.
This Israeli court also held that clickwrap agreements better evidence a consumer’s consent than browsewrap agreements. If clicking on a link is required to view the terms of the contract, such link must be featured prominently for consumers to see. (The court even states that in the online environment, viewing additional linked documents is easier than in the offline world).
Some other courts (including the very recent May 2013 Massachusetts holding in Ajemian v. Yahoo!) have refused to even enforce click-wrap agreements against registered users on the basis that the website operator did not meet the burden of showing that the terms were adequately communicated and accepted. It seems safe to conclude that any court that would invalidate a click-wrap agreement on these grounds would look even less favourably on a browse-wrap.
Anyway, I’m sure you get the idea?
For the benefit of readers & moderators/without prejudice. These are just a few pointers that have been thrown together for general discussion/consideration. I make no apology for the length of this entry…..because it is IMPORTANT! to everyone.
Having now aligned their counterclaim to the recently found company Terms of Service, I am able to shed some more light on the subject. First of all, let’s look at Browsewrap pages.
Abstract:
The company have failed to demonstrate a valid & assented online contract between it and myself which is in the form of a browsewrap page on their main website. The use of a browserwrap page as their cornerstone
mechanism for contract assent is questionable if not unenforceable. Such unenforceability is supported by case law evidence as in (Zappos 2012) and others. The defendant’s terms of service are also inconspicuously
located and submerged as a mere abbreviation at the bottom of their incomplete web page, and separate to the Trading Platform download, or any other “Service Promotions”. The defendants’ website is evidently
structured in an unfair manner as to misguide customers in their heavy use of the term FREE relative to their onerous Terms of Service. These terms of service are abbreviated to TOS on their website, and do not appear
on a purchaser’s computer screen unless he or she scrolled down to display the ‘submerged’ clause. Drawing on similarities to Zappos 2012 & others, The Terms of Use is inconspicuous, buried in this case at the end and
bottom of every THP webpage after other incomplete links. The incomplete website/trading platform never directs a user to the Terms of Use. No reasonable user would have reason to click on the abbreviation TOS.
1. Belated Claim & Use of Terms of Service (TOS)
a) This belated claim alleges that I have a contract (see Boilerplate contract: Standard form contract - Wikipedia, the free encyclopedia) with Traders Hideout by virtue of their online webpage Terms of Service.
b) I am liable for "promotional Services" including a training fee which amounts to the total funds plus an additional amount, calculated @ an arbitrary $2008.00 per hour, which now makes me the alleged DEBTOR! and severely out of pocket.
In fact, when I actually showed the company counterclaim to fellow member(s), this was the response I got off one member:
“The things he talked about in his letter, I have never heard one word of this during all the time I’ve been with TH. Never one word.”
Before looking at the Terms of Service per se (next entry), let’s look at the packaging of their so called contract. The Traders Hideout TOS "Terms of Service" page is commonly referred to as a Browswrap page as opposed to a "Clickwrap" page - both have legal and distinct differences. As with everything, there is a great deal of available information on the subject. One contributor (Eric Goldman (How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked - Forbes) pretty well sums it up as he re engineers the terms including browsewrap user agreements, which he affectionately calls “not a contract”.
2. Browsewrap & Clickwrap
a) A browsewrap clause purports to bind the user of a website to a contract created by the user's mere browsing of the website. It is often unlikely that the user even viewed the browsewrap clause, much less assented to it. The browsewrap clause assumes the user's knowledge of and consent to the browsewrap contract.
b) A clickwrap agreement (also known as a "clickthrough" agreement or clickwrap license) is a common type of agreement often used in connection with software licenses. Such forms of agreement are mostly found on the Internet, as part of the installation process of many software packages, or in other circumstances where agreement is sought using electronic media. The name "clickwrap" came from the use of "shrink wrap contracts" commonly used in boxed software purchases, which "contain a notice that by tearing open the shrinkwrap, the user assents to the software terms enclosed within".
The Traders Hideout page is clearly a “Browsewrap Page”.
`Browsewrap Opinion & Case Law: According to the majority of commentators including (Ed Bayley eff.org, 2009) the use of browsewraps agreements is unfair to users, who generally are surprised by these “contracts” that were never brought to their attention. Accordingly, courts increasingly judge it to be unfair to hold website users accountable for terms and conditions of which a reasonable Internet user would not be aware just by using the site.
As with clickwraps, the key issues are often notice and opportunity to review the terms. Courts are especially skeptical where service providers do not place links to terms, or references to them, in conspicuous locations so as to notify the user that they even exist. Unlike other media, the draw of the Internet rests heavily on providing users instant access to incredible amounts of information. As a result, it is not surprising courts may find it unreasonable to expect users in this environment to scroll and scour every inch of a webpage, searching for links labelled “Terms and Conditions” or “Privacy Policy.” Such behaviour runs opposite to our instincts on the Web.
https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service
Other sites inc. opinion/case law:
1. IP: Effective terms of use agreements
2. Are Browsewrap Agreements Enforceable in New Jersey?
3. Your Terms of Use Might Be Illegal | Inc.com
4. Browse-Wrap License Agreement Not Valid
5. Rebecca Tushnet's 43(B)log: Browsewrap fails to bind customer to individual arbitration
6. How Zappos' User Agreement Failed In Court and Left Zappos Legally Naked - Forbes
Suffice to say I would advance the suggestion that Case Law is very much against Traders-Hideout in that they do not meet the burden of showing that the terms of service were adequately communicated and ACCEPTED. As in Ajemian v. Yahoo! in May 2013 and Zappos 2012 which, whilst not exhaustible in example, are of particular interest. It seems safe to conclude that any court that would invalidate a click-wrap agreement (Ajemian v. Yahoo!on) on these grounds, would look even less favourably on a browse-wrap. https://medium.com/laws-of-the-digital-domain/7b0bb2437dac.
I hear THP shouting “but this is all outside Israel and is contrary to our Governing Law & Jurisdiction clause under our Terms of Service and doesn’t apply”. Fear not, a recent Israeli case Judge gave that very subject a mention as well. This was the case of a Forex platform provider in the case of Malka v Ava Financial. Certain statements of the court are extremely important for non-Israeli companies entering into clickwrap or browsewrap agreements with Israeli customers. I appreciate it is the opposite customer/company relationship in my case. However, the court (Judge Ruth Ronen) stated that while "non est factum" arguments with respect to signed agreements must be interpreted restrictively, a party relying on a contract must produce a signed document evidencing the counterparty’s agreement. In an online setting, a party’s intent to enter into a contract can be established by showing that such party was informed of (i.e., read) the terms of the agreement and actively expressed his consent to be bound by them.
This Israeli court also held that clickwrap agreements better evidence a consumer’s consent than browsewrap agreements. If clicking on a link is required to view the terms of the contract, such link must be featured prominently for consumers to see. (The court even states that in the online environment, viewing additional linked documents is easier than in the offline world).
Some other courts (including the very recent May 2013 Massachusetts holding in Ajemian v. Yahoo!) have refused to even enforce click-wrap agreements against registered users on the basis that the website operator did not meet the burden of showing that the terms were adequately communicated and accepted. It seems safe to conclude that any court that would invalidate a click-wrap agreement on these grounds would look even less favourably on a browse-wrap.
Anyway, I’m sure you get the idea?
Traders Hideout have been replied to - effectively citing that their "Terms of Use" are irrelevant based on International case law/Israeli Standard Contracts Act & Consumer Protection laws. Covering letter and attachment sent to company are below.
Attachments
I'm so glad I read this before taking things any further with Traders Hideout. I added Mike on G+, Skype and sent a couple of emails to ask him how the PayPal account funding process works. I got a bunch of ambiguous answers at best - and these took a week or more to arrive too. The whole time I kept thinking "how the hell should I feel confident sending my money off into the blue, when it takes forever to get any kind of level of support?".
Its a real shame that this awesome platform was made only to be backed by some financial rapist. I also was thinking as I was trying to convince myself that everything will be fine, is that "what if someone pisses him off, or he has a bad day and he just decides to run off with everyone's money?". In your case Gron, I can see that my fears were well founded.
I'm sorry that this guy "Mike Metheral" aka whatever, is putting you through this bull**** Gron. Its not fair on us traders - especially when our very livelihoods are at stake.
I've put up a warning on each of the youtube videos he's made followed by a link to this thread, so that others don't fall into this trap. Perhaps you might be justified by writing to youtube with your story so far and these videos might have to be removed? Just an idea.
Hang in there man, and keep up the good work.
Its a real shame that this awesome platform was made only to be backed by some financial rapist. I also was thinking as I was trying to convince myself that everything will be fine, is that "what if someone pisses him off, or he has a bad day and he just decides to run off with everyone's money?". In your case Gron, I can see that my fears were well founded.
I'm sorry that this guy "Mike Metheral" aka whatever, is putting you through this bull**** Gron. Its not fair on us traders - especially when our very livelihoods are at stake.
I've put up a warning on each of the youtube videos he's made followed by a link to this thread, so that others don't fall into this trap. Perhaps you might be justified by writing to youtube with your story so far and these videos might have to be removed? Just an idea.
Hang in there man, and keep up the good work.
Thanks very much Wifirex - I'm so glad that you avoided this scumbag company. I'll look into the 'You Tube' aspect and certainly place a comment on the last video he produced on the 21/2/2013. I suspect that this company operate a similar business model (for want of a better phrase), to that of a 'Forex Bucket Shop'.
Cheers
Gron
Cheers
Gron
Legal Intervention: The Forex platform provider "Traders Hideout", have failed to respond my last and final email of 21st January 2014 (entry 63 above), in which I requested settlement of this matter or face litigation process. Legal advice was taken in February with Attorney(s) receiving full disclosure of the facts of this case. They have been authorized to act on my behalf, and will from now on communicate with the said firm. This process was commenced in recent days, and the thread will be updated in due course.
Regards
Regards
Jason Cline
Recruit
- Messages
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Gron12, were you able to reach satisfaction in this claim? I am also having trouble with said company. I've made extensive profits and in response to my first withdraw request I was banned from the platform and, I assume, my account was closed. They state my funds will arrive in thirty days but seeing all this... I doubt that. My profit was %1550 more than my deposit amount.
Hi Jason - Apologies for not replying sooner. Quite simply, no funds have been returned. I was also contacted by another trader who had an issue with them, but has not reported this through FPA. Have you registered your issue with Forex Peace Army by chance.? Please feel to PM if you so wish. Regards Gron
