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.
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.
"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.
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.
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.
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.