Must this retailer honor this price error from their website?

[adam1mc]

OfficeMax recently had a TomTom 910 GPS Navigation unit for sale on their website for $59.00. This unit retails for $499.99. Not surprisingly, I jumped on this deal and bought 2 of them.
http://i68.photobucket.com/albums/i4...r59cropped.jpg


Several minutes after purchasing the units, OfficeMax removed the listing from their site and needless to say 1 day later I get an email advising that the order has been canceled due to a pricing error, but not before OfficeMax authorized money from my account and sent me an email confirmation.
http://i68.photobucket.com/albums/i4...203cropped.jpg



I have read several posts on this site that deal with pricing errors, but this is slightly different so I'm hoping to get new insight.

When calling OfficeMax to inquire as to why my order had been canceled, they directed me to a section within their terms of service:
http://about.officemax.com/legal/

Disclaimer. BY USING THIS SITE, YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS SITE AND THE INTERNET GENERALLY.
THIS SITE IS PROVIDED "AS IS". OFFICEMAX DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, PRODUCT LIABILITY, AND FREEDOM FROM ERRORS, VIRUSES, AND BUGS (INCLUDING THE MILLENNIUM OR YEAR 2000 BUG), OR OTHER HARMFUL COMPONENTS.
OfficeMax will not be responsible for any errors or omissions in the Materials or information provided on this site, any articles or postings for hyperlinks embedded in messages, nor for any loss or damage caused by your reliance on information obtained on this site or in a hyperlink site.
References to third-parties, their products, and/or services does not imply endorsement by OfficeMax thereof.
This site may contain technical inaccuracies or typographical errors. Changes are periodically added to the information herein; these changes will be incorporated in updates of the site. OfficeMax may make improvements and/or changes in the product(s) and/or the program(s) described in this site at any time without notice.

I pointed out to the CSR that NO where within that Term does it advise that OfficeMax can cancel an order due to errors on their part. I asked if OfficeMax had an "Error Pricing Policy" which I BELIEVE is required by the FTC but they have no idea what I'm talking about when I ask for that.

Furthermore, another term from within the terms of service states:

PURCHASE. Upon OfficeMax's acceptance of a Customer's order, a firm contract for the purchase and sale of the Supplies will be formed between OfficeMax and Customer, and shall incorporate all the terms set forth herein.

So, my question is: Considering the fact that OfficeMax has entered into a "Firm Contract" to provide the goods or services AND the fact that NO WHERE in their terms does it state that they can cancel an order at any time due to a pricing error..... Are they still required to provide this item the cost quoted?




OfficeMax is governed under Illinois law and I reside in the State of Colorado.


Thanks

[seniorjudge]

Thanks for the laugh.

Made my day!

[Mr. Knowitall]

Their website doesn't define what constitutes "acceptance" of your order, but it is reasonable to infer that their processing the order, accepting payment and sending you a confirmation would be deemed "acceptance" by a court. I don't know why they don't have a better policy to cover pricing errors made on their site. Their references to the "millennium bug" suggest that they haven't updated their policies for six or seven years.

Under the circumstances, though, they may be able to claim equitable relief from the deal on the basis basis that any reasonable consumer would have known (or should have known) that the price reflected an error, or that completion of the sale would result in an unreasonable economic harm to the business.

One way or another, they're not going to voluntarily sell you the units at that price, so you're probably going to have to take your chances in court if you wish to press the issue.

[adam1mc]

Thanks for the laugh.

Made my day!

I'm glad I could help out with a good chuckle, Judge. However, I am a little confused as what was so funny and I'm wondering if you could elaborate for me.


First, as you can see from THIS LINK, Office Max did in fact advertise and offer this unit for $59.00

I have a receipt, order confirmation and order processing emails as well as the money being removed from my control and into the control of Office Max.

The cancellation email I received states:

Dear Valued Customer,

The TomTom 910 (item number 21092577) was incorrectly priced at $59.00 and we will need to cancel your order number 103426204. Your credit card will not be charged for this item.

We again apologize for this inconvenience, and if you have questions regarding the cancellation of this item please contact us at 1-877-OfficeMax, or view our terms and conditions policy at OfficeMax.com. We value your business.

Sincerely,

OfficeMax Customer Service

I've read the "Terms of Use", and I am not able to locate any clause or disclaimer that states that Office Max has a right to cancel an order at their discretion due to a price error on their part. In fact, I've contacted support and Corporate Resolution and neither is aware of a "Pricing Error Policy" from Office Max either.


As I stated earlier, a clause from the "Terms of Use" states:

PURCHASE. Upon OfficeMax's acceptance of a Customer's order, a firm contract for the purchase and sale of the Supplies will be formed between OfficeMax and Customer, and shall incorporate all the terms set forth herein.

That tells me that there is a binding contract and that the cancellation of this order has breached this contract. Even 24 hours after cancellation of the order, the money had still not been released back into my possession.


As Mr. Knowitall pointed out earlier, One could claim equitable relief on the basis that any reasonable consumer would have known that the price reflected an error. But I would assert that in today’s extremely competitive marketplace many vendors will routinely mark items down (sometimes even for loss of profit) in an attempt to lure customers into a store or onto a website.

Many of these “Easter egg” deals are available from many online vendors and major retailers. These would range “Black Friday” sales, to ‘Linen’s & Things’ “Deal of the Day”. There are numerous websites dedicated to collecting and sharing this information so consumers are aware of the best deals available. These sites would include: www.slickdeals.net , www.dealnews.com and others. I would contend that with this ever changing, super-competitive environment consumers have neither the time nor the patience to research each and every deal to ensure that the transaction will be valid. Instead, consumers are presented with what they are given and I would argue that it is up to the individual retailer to ensure correct prices are listed on the website before posting the page onto the web server.

So based on that, I'm not sure if there has been a breach but I'm guessing that I at least have an argument if I want to pursue it. It looks like I'm not the only one who is a little upset over this deal:

http://www.todaystmj4.com/news/local/6760406.html


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I have another question. Regarding the same transaction and maybe someone will be able to comment on this.

I place one order for this unit. The subtotal was $59.00 with $4.55 for tax.


After I placed that order, I decided I should have hopped on the deal and bought more than one. So I logged back onto the Office Max website and made the SAME EXACT PURCHASE. Same purchaser, same billing address, same ship to address, same city, same card, SAME EVERYTHING.


Well the second order, the subtotal was $59.00 and the tax associated was $4.90


I live in Denver and our Tax Rate is 7.72% Exactly how can my tax be greater for the 2nd transaction. Does this not constitute fraud, albeit quite small, but just goes to show a pattern of neglect when it comes to the Quality Assurance of website code or website content before being placed on the web server.

[seniorjudge]

You can't be serious....

A mistake of $450 =/- ... really.

You didn't think that was a misprint?

[adam1mc]

You can't be serious....

A mistake of $450 =/- ... really.

You didn't think that was a misprint?

No. And should I have? Many retailers make special offers on items of up to 90% off. Should I assume that a multi-million dollar company DOESN'T check their information before posting it on the website?

Anytime a person see's a really good deal online, should they research the sale throughly, via search engines and other online retailers in an attempt to make a determination of whether or not the retailers listed price was the intended price?

That seems like a stretch, even for me.


Also, other major retailers have disclaimers protecting themselves in the event of a price error. Office Max doesn't have that. Therefore I see no justification for cancellation of the sale. Furthermore, they make reference to a "Firm Contract". Is this reference for their benefit or mine? They would hold me to the "Terms of Use" if I didn't pay, can I not hold them to their own "Terms of Use" when they don't deliver?


I appreciate your feedback, Judge. Just so it's noted, I'm not trying to be argumentative. I'm just trying to have an understanding as if they are obligated to honor this agreement or not.

Thanks

[seniorjudge]

A unilateral mistake is where only one party to a contract is mistaken as to the terms or subject-matter. The courts will uphold such a contract unless it was determined that the non-mistaken party was aware of the mistake and tried to take advantage of the mistake.

You would need to show a court that you, in good faith, were not aware of the mistake.

From the facts you give us, I don't see how you could prove it.

But, you never know:

http://links.jstor.org/sici?sici=001...3E2.0.CO%3B2-5

[adam1mc]

A unilateral mistake is where only one party to a contract is mistaken as to the terms or subject-matter. The courts will uphold such a contract unless it was determined that the non-mistaken party was aware of the mistake and tried to take advantage of the mistake.

You would need to show a court that you, in good faith, were not aware of the mistake.

From the facts you give us, I don't see how you could prove it.

But, you never know:

http://links.jstor.org/sici?sici=001...3E2.0.CO%3B2-5

Thanks for your advise, Judge.

Just so you know, I don't want to sue over this issue. It's really not worth the time. I just wish I could get them to honor the original sale.



Also, your link only provides the 1st page of the Opinion to non JSTOR members. But I did come across an article that talks about how a company can limit their loss from pricing errors by utilizing Terms of Service. Unfortunately, OfficeMax doesn't practice these safety measures...

http://www.lctjournal.washington.edu...2groebner.html