Should we Opt. out of the New TOS?

[MaxPower]

Hi Watchdog,

I have a question about EZexpo's new opt-out policy. What should we do? I want to do what is best for the case, but I was wondering if you could ask your lawyer about it. I do not no if it is best to opt-out, or do nothing. Here's my questions:

1. If we opt-out of the lists, would this be saying to EZexpo that I have decided to let everything go... That I do not feel that I am entitled to my electronics?... Basically that it is my free choice not to recieve anything, and they don't owe me anything? (Basically, would it be an admission by me that EZexpo never needed to provide a product, and EZexpo has done nothing wrong)?

2. Or if we do nothing, is this a legal admission that I accept the new TOS?

I'm sorry about the poor wording of these questions, but for some reason I can't think of a better way to word out the question (I'm not sure if anyone will get what I am trying to ask).

Basically what I am attempting to ask is... which option will help the case?:confused:

[MatrixWatch]

MaxPower,
Fantastic question, and very relevant. I am glad you asked it, and I am equally glad that you seek for guidance before you act. Your suspicion that it is a legal powerplay to keep people from getting involved in the suit is a suspicion that is shared by many. My answer will be posted below after I gather more info.

[Arzel]

Another point in this issue is the requirement of the company to notify it's customers. It has been my experience that a formal notification must be made when a period of time is given as a requirement to opt-out or remain.

Credit card companies often change their TOS, I am sure all of us recieve thier notifications of the changes in the mail on a regular basis. If you read the new terms you would notice that you are given the chance to opt-out.

I think this little manuver will work against EzExpo because it seems to imply that you have a contract with them to recieve your "Free" gift.

[Shelby]

If you are in the lawsuit you should definately opt out or you are committing fraud. Second the notification is on the website and if after 30 days you don't ask to be removed you are bound by the TOS. Third we are not an illegal lottery and we are winning in CA and the case is not even certified and probably will not be certified as a class action suit. Please read the very unprofessional summons, downloadable here, written by the money hungry, not to bright lawyer timmy has for your case.
Just isn't gonna happen.....

[Arzel]

The notification on your home page is not a formal notification. The onus is on the company to formally notify it's customers. You cannot require the customer to return to your web page to find out a new TOS.

I am not quite sure how the customer would be committing fraud, unless the customer did recieve a refund from the e-book, and cycled to recieve the "Free" gift.

I think that any individual involved in the lawsuit should relay all information to Mr. Ware through the attorney involved in this lawsuit.

[Shelby]

Here and here ---> http://www.ezexpo.com/announce.asp

That's as formal as it gets. Also, only the 10 or 15 people you may have convinced to join..... you can tell them and they can read the post. 30 days and the TOS are effective for everyone still remaining. You can choose to ignore it just as Timmy ignored it to begin with....still applies to him and everyone else....

[MatrixWatch]

The new TOS opens up by stating that a member agrees to the terms without modification, yet a few paragraphs down EzExpo reserves the right to modify the TOS. That does not favor the customer. Furthermore, I was wondering about this little statement:

"EZ Expo offers its gift pools as opt-in programs and under no circumstance must be held liable for the outcome of such program."

Not held liable for the outcome? To what extent? Why is this even there?

[MatrixWatch]

As far as the new terms of service are concerned, it is completely irrelevant to the lawsuit. The customers can remain on his list (or not) and still be entitled to restitution per my lawsuit. Since my lawsuit may not get reimbursement for everyone who bought through PaySystems or by money order, it would wise to stay on the list. EzExpo's new "Terms of Service" can have no effect on the class member recovering through my lawsuit.

[Shelby]

You watchdog do not run our site or create rules pertaining to it.

If they join your lawsuit and don't inform us they are committing fraud.

Period

[Arzel]

Shelby,

Your rules do not mean diddly if they are not legal. And from what you have posted on your homepage, your "new" rules don't appear to be very legal, and for anyone that joined before you made the rules they won't mean anything to a judge.

I am still not clear on why you think your customers would be committing fraud. That would imply that your customers signed up with the intent of defrauding you and EzExpo of money, and I find that highly unlikely.

For one, very few, if any, are going to ever cycle. And two, I think most of your customers would be happy just to get their money back at this point.

[MatrixWatch]

Two things. First, what is meant by, "We are winning in CA and the case is not even certified and probably will not be certified as a class action suit."

Shelby has not even filed his papers to appear in the case yet. He is winning nothing and does not have a lawyer.

I am the class representative and it is not necessary for anyone to "join" this lawsuit to get relief. Shelby just doesn't understand that concept. There is no fraud in joining a lawsuit and not informing him, but in any event the class members do not "join" the lawsuit by being class members. That's for a Judge to decide, not Shelby. And if his TOS is supposed to prohibit a victim from being part of a class action, such a provision would be illegal and un-enforceable.


Second, notice in Shelby's Terms of Services that it says:

"EZ Expo offers its gift pools as opt-in programs and under no circumstance must be held liable for the outcome of such program. Matrices are free to enter and have no monetary value to the customer thus voiding it of refund rules and regulations as outlined in “Refund Policy”. Entry into the matrix is a gift based on goods and/or services purchased from EZ Expo"

Which is it? Are they "free to enter" (thus avoiding the lottery issue completely) or is purchase of goods or services required (thus bringing the lottery violation back into issue).

It IS possible to avoid being a lottery, but he has to give away the entries to the Matrices. If that is the case, I suggest everyone flood his site with requests for free entries. If those requests are not honored or there is no way to submit them, then clearly the claim "entry into the matrix is free" is a sham.

[Shelby]

Wrong again on all points, I'm not going to argue though.
Lottery, nope no chance involved....haven't you figured that out yet. Everyone cycles and everyone gets the free gift once they do.

You are just clinging on to a pipe dream.

Later

[MaxPower]

Why is it fraud just because we join the case?

I will admit that it would constitute fraud if somebody received a refund then stayed on the list and received their electronics or cash payout.

Once I receive my refund I will surely give you my name.
You even say that we can attempt to get a refund from the cc processors. I've been attempting to do so through Paysystems for over four months now. Paysystems will not even give me a response. I am planning to call them whenever I can get around to it. Do you have any tips or suggestions on getting these refunds?

Once I get my money back, then you will get my name.:D

[Shelby]

You are correct and that is what I'm refering to. If you get refunded and stay on the list and cycle and receive a gift, that's fraud.

Can't help with refunds, we are ignored too since timmy filed suit against them.

[MatrixWatch]

At first, I thought that EzExpo had hired a lawyer to draft their new TOS. Upon further investigation I am doubting that, in fact, they may have copied it from another site. It could be the other way around, but I would like to see what some of you have found.

An example is EzExpo's clause on Arbitration. It reads:


************Dispute Resolution and Arbitration************

All disputes arising out of or in connection with the present contract shall be initially subject to (1) conference between parties, (2) mediation by one or more mediators appointed by either party. If disputes remain unresolved within 7 business days, the dispute will be finally settled under the Rules of Arbitration of the International Chamber of Commerce and the Federal Arbitration Act by one or more arbitrators appointed in accordance with the said Rules. Arbitrations shall be conducted in Corozol, Belize, Central America. An arbitration settlement between parties will be final and binding. Parties may not seek provisional remedies from courts in any jurisdiction while an arbitration is in effect. This clause will apply to any jurisdiction in which this contract is applicable and sections may only be deemed severable as per the clause entitled "Integration and Severability" contained herein

http://www.ezexpo.com/TOS.asp


Now, here is the Arbitration clause from the TOS of extremematrix.net


Dispute Resolution and Arbitration

All disputes arising out of or in connection with the present contract shall be initially subject to (1) conference between parties, (2) mediation by one or more mediators appointed by either party. If disputes remains unresolved within 7 business days, the dispute will be finally settled under the Rules of Arbitration of the International Chamber of Commerce and the Federal Arbitration Act (guidelines by the American Arbitration Association) by one or more arbitrators appointed in accordance with the said Rules. Arbitrations shall be conducted in Lexington, Kentucky. An arbitration settlement between parties will be final and binding. Parties may not seek provisional remedies from courts in any jurisdiction while an arbitration is in effect. This clause will apply to any jurisdiction in which this contract is applicable (but primarilty in the state of Kentucky) and sections may only be deemed severable as per the clause entitiled "Integration and Severablity" contained herein.


http://www.extremematrix.net/images/links/privacy.html


One thing that makes me a little curious is where EzExpo has chosen to hold its arbitration, Corozol, Belize, Central America! I don't think this clause is even Constitutional!

[mikv]

As well doesn't all parties involved have to agree to the arbitration clause and SIGN that they agree before the clause can even take effect? This is along the lines of PayPal's arbitration clause which I've read on another forum that they can not force anybody to accept those terms without notarized proof that all parties agree. You can't just put a check box & accept button for the type of contract that is. I would assume that you have to have an actual signature in order for the contract to be in effect. I'm not too sure on the laws regarding though. Can anybody shed some light?

[nicoleeubanks]

Okay that is so sad it is almost funny..... Who is going to go to Central America for an arbitration meeting??? I for one(as I am sure everyone is aware) am a matrix site supporter but not of things that are this far out..... Is that legal to require people to go to another continent to resolve this type of an issue??? I am one of the many people that are still on EzExpo lists. I think I am like # 153,659,000 on the $50 Laptop list and like # 256,458,452 on the PS2 list(give or take a few) so anyway I have never requested a refund or to opt out/opt in etc and have just pretty much not visited the site since(4/03) a few weeks after I signed up and realized what the "real deal" was and that IF I cycled it would be a very,very long time.... So as amazing as it will probably seem to many I never even knew that EzExpo was in a lawsuit or anything else until I went back to their site about a month or less ago and then everything just seemed so crazy I had no idea what was going on.... My question.... If I stay on these lists I am supposedly going to be added into some new site list they are opening up or something to attampt to assist me in eventually cycling right??? I am sure somewhere in EzExpo forums(which confuse me) and here there are probably many discussions about all of this but I am just missing the obvious stuff about this.. Can someone please fill me in on it... Sorry if you have to repeat yourself.... Thanks

[hello]

The bottom line is that ezexpo is as good as dead, it just needs some dirt thrown over itself and a few weeds placed on top of the grave site.

I noticed that even their ranking on the top matrix is currently number 257 out of 268. LMAO. They are even lower than sites that have already closed down. HEE HEE HEE HEE HEE. My stomach hurts from all this laughing.

[spydrman]

The ranking on top matrix doesn't necessarily mean anything. It just means that other sites have invested some interest in voting for themselves, and probably referring their customers and friends to vote as well.