The two original applicants, Ms. DeFontes and Mr. Long, were doing slightly different business. Ms. DeFontes purchased her computer through Dell Catalog and opted for a service contract with BancTec. It paid a total of $950.51, of which $13.51 was designated as a service contract tax. Mr. Long purchased his computer through Dell Marketing and opted for a service contract managed by Dell. In total, it paid 3,037.73 $US, of which $198.73 was recorded as tax for the service contract.
It is not alleged that Dell improperly withheld the tax. Several months after the applicants filed their amended complaint, the defendants filed an application for a stay of proceedings and forced arbitration, seizing an arbitration provision under the alleged parties` agreements2.2 The defendants argued that the arbitration provision was part of a “conditional agreement” that the applicants had agreed to in accepting the delivery of the goods. In particular, they indicated that the applicants had three different opportunities to verify the terms and conditions agreement by choosing a hyperlink on Dell`s website, by reading the terms of the confirmation/bill sent to complainants at some point after the order, or by checking the copy of the conditions contained in the packaging of its computer products. In the first question, the defendants informed the applicants that “[t]he acceptance of the provision of computer systems, related products and/or services and the assistance and/or other products described on that invoice[,] They (the “customer”) are ready to be linked and accepted.” Although this language informed the applicants that the defendants intended to bind them to commercial terms that had not yet been disclosed, it did not inform them of the period from which they agreed on those conditions. The applicants argue that the meaning of “accepting delivery” is obvious to a reasonable consumer. We are not so sure. See Licitra, 734 N.Y.S.2d to 392 (“All terms of the agreement” should not be applied solely because the consumer keeps the equipment 30 days after receipt, especially because it is not known when the 30-day period for protests begins. Does it start with the delivery of the goods to the carrier, since the “contract” stipulates that the title fee is made during the “delivery to the carrier” – or does it begin with the denial when received by the consumer? Does the period remain in the all-too-frequent situation where a parent buys the computer as a gift for a student and does not give the gift for several weeks, or does the clock turn while the device is in the box?” ». “Acceptance of goods” has a technical meaning that is not easily recognizable by the average consumer15 A consumer may believe that he has simply agreed, by opening the package, to be bound to the conditions it contains.