Retailer Wants a Restocking Fee to Replace Defective Merchandise

My question involves a consumer law issue in the State of: TX

I bought a new table online from a local furniture store and had it delivered
The table was delivered and assembled by the delivery man
I noticed after delivery that the table had a wobbly base and noticeable tilt
I alerted the merchant that the table was defective and that I wanted to return the table
They requested photos and video showing the tilt and wobble, which I provided
They acknowledged the defect and said their manufacturer would replace the table

Their return policy is listed in the terms and conditions web-page where it states:
- orders that are returned or refused are subject to a 20% restock fee
- delivery and freight costs of the returned items must be paid for by the customer

Also on this web-page, the warranty for merchandise is:
- materials and products on this site are provided “as is” and without warranties of any kind, whether express or implied.
- to the fullest extent permissible pursuant to applicable law, merchant disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement

Currently they want to charge me about $500 in return shipping fees and restocking fees (for a $1000 table)

Can they charge me to return or exchange a defective piece of furniture?

Do you mind if I refer to this merchant as Simply Awful? If I'm right about the vendor, although I have not worked my way through the entire buying process, I don't think that the disclaimer of warranty on the 'terms and conditions' page, the link to which is only visible if you hover over "about us", is "conspicuous". Is there a point in the shopping process where you actually see a disclaimer, or does the store simply charge any online customer with reviewing every page on the entire site if it wants to find out whether the store stands behind any of its merchandise?

Quote:

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Quoting Texas B&C Code, Sec. 2.316. Exclusion or Modification of Warranties

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(a) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to the provisions of this chapter on parol or extrinsic evidence (Section 2.202) negation or limitation is inoperative to the extent that such construction is unreasonable.

(b) Subject to Subsection (c), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that "There are no warranties which extend beyond the description on the face hereof."

(c) Notwithstanding Subsection (b)

(1) unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is", "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty; and

(2) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; and

(3) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade.

(d) Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy (Sections 2.718 and 2.719).

(e) The implied warranties of merchantability and fitness shall not be applicable to the furnishing of human blood, blood plasma, or other human tissue or organs from a blood bank or reservoir of such other tissues or organs. Such blood, blood plasma or tissue or organs shall not for the purpose of this Title be considered commodities subject to sale or barter, but shall be considered as medical services.
(f) The implied warranties of merchantability and fitness do not apply to the sale or barter of livestock or its unborn young.

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Quote:

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Quoting Cate v. Dover Corp., 790 S.W.2d 559, 560 (Tex.1990).

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The extent of a buyer's knowledge of a disclaimer of the implied warranty of merchantability is thus clearly relevant to a determination of its enforceability. See Singleton v. LaCoure, 712 S.W.2d 757, 759 (Tex.App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.) (relying in part on buyer's acknowledgement to enforce disclaimer). The seller has the burden of proving the buyer's actual knowledge of the disclaimer.

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Note that whatever the facts, this may not be something that the merchant will voluntarily resolve.

Yes, this merchant is Simply Awful

No, there is no disclaimer of warranty or details of the return policy in the buying process. I only discovered the disclaimer and return policy while I was exploring the website after the conflict began.

I understand they may have a tough time enforcing the disclaimer of warranty because it is not conspicuous on the website

I am more concerned about the conditions of returning the table.

Can they still charge a restocking fee and $300 in shipping costs for a defective table (they want to charge me for the costs of freight from their home-store to the store in my city, delivery from the store to my house, pickup from my house, packing crate cost, and return freight from my city to their home-store)?

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Also, if I initiate a chargeback through my credit card company for defective merchandise, can the merchant sue me or otherwise try to recoup any costs?

I think the two issues go hand-in-hand. If they sold a product that was not merchantable due to its being defective, then the (similarly buried) restocking fees should not be charged as they did not live up to their end of the bargain.

Yes, the merchant can try to collect the sale price if you do a chargeback, but often that's the most effective way to get them to be reasonable. You may also have some warranty protections available through your credit card as a benefit offered by the credit card company.

Ethical companies resolve defective merchandise issues with the manufacturer as opposed to trying to pass that cost or burden onto the customer.

What is the name of this store so we can stay clear of it?

It's the name of what is actually a pretty nice city in Texas, but which in this context brought to mind the world Awful.... Simply Aw... shucks? Simply Au... something.

Is this a nice city?

http://www.austintexas.gov/

You got it.

The merchant is offering an exchange, but I want a refund because I do not want to do business with them anymore.
Do I have to accept the return, as this is their effort to fulfill their obligations to rectify delivering a defective table?
If I demand a refund and dispute the charge with my credit cars company, can they attempt to sue me afterwards for the restocking fee and freight and claim that they tried to replace the table, but I refused?
I would imagine the defective table is going back anyway, so they are not suffering any damages they would otherwise have from exchanging the table.

If they are offering a straight exchange -- they pick up the costs of returning the merchandise and replacing it with a new table -- then that would normally be a reasonable offer on their part. If this is a change from what you initially appeared to describe -- their saying that they would charge a restocking fee and shipping fee simply to arrange the exchange of the defective table for one that was in marketable condition -- I can understand why you would not want to do business with them.

I question whether any portion of their "terms and conditions" page is binding on web customers. The terms and conditions are hidden behind the "about us" link on the top navigation, and it does not appear that they are repeated or that you are required to agree to any terms of sale when you purchase items placed in your shopping cart. While merchants can impose restrictions on the return of merchandise, including charging restocking fees, "return for store credit only" or "as-is, no returns", they must take reasonable steps to communicate special restrictions and fees to consumers.

Are they presently making the offer, "We will either replace the table to you at no additional cost, or you can return the table and we'll charge a 20% restocking fee"? If so, your choice to return the table could be construed as your entry into an entirely new contract or as an "accord and satisfaction" through which you are agreeing to pay that 20%, and be potentially enforceable against you despite any lack of clarity or ambiguity in the original terms of sale.