But isn't the consumer implying an agreement to terms of service of a website when they conduct business there? If not what constitutes "making someone aware"?
To make someone aware of what is in a contract means not hiding it in a several paragraph or several page contract filled with legalese. It is better to make problematic clauses stand out, and then to reiterate the provisions that are important (either leading with the provision or, if in the middle of the contract, adding it again at the end above the signature) to ensure the employee/consumer knows it is there.
An employer/company does not want the contract terms found by a court to be either ambiguous or provisions inconspicuously hidden in the pages to "get one over" on the signer. The person signing should, of course, read all contracts in their entirety and know and understand what is being signed prior to signing, but easier to understand provisions and clear wording in the contract means the contract is more likely to hold up in court.
I want to clarify now a bit what I said in an earlier post. I said that non-disparagement clauses are "unenforceable/unconstitutional" and that is only
sort of correct. Anyone who signs a contract is (generally) legally bound by all terms of the contract, and this includes a contract with a non-disparagement clause in it. However, in reality, you cannot
stop a person from speaking out and the costs to pursue a legal action against one who does so can be extremely high. The costs can easily exceed any damages (and that is if damages can be proved).
Some contracts have included, to go along with their non-disparagement clause, a penalty or damages provision that spells out what it will cost the signer of the contract if they breach it (ie, if you disparage me, you must pay me X amount of dollars). That would avoid a court hearing and the disparager could be billed for the breach.
However, these clauses, even when coupled with a damages provision, can be challenged or "worked around," and have been successfully.
First, the employer/company who has a non-disparagement clause in their contract and is "disparaged" (whatever that might mean - and the definition can be argued in court, if it is not specifically spelled out in the contract) - can sue for breach of contract or to collect damages provided for in the contract. It is costly to sue, as I said before, and it can actually be MORE damaging to an employer or a company's reputation to file a legal action against an employee or customer, because it generates more negative publicity than a single negative review would. This is something an employer or company must consider carefully.
If a review is
defamatory and not simply disparaging (again, whatever "disparaging" might mean), there are already laws to handle defamation.
As a note, a third party (such as a spouse or friend of the contract-signer) is not bound by the contract terms and can freely speak ill of the employer or company. As another note, of those companies I am aware of whose non-disparagement provisions have been challenged, all have removed the clauses from their contracts as a result.
Non-disparagement clauses are common in settlement agreements but the parties involved in settlements are made aware of this being a term of settlement and, without agreement to this provision, there might not be a settlement.