Item ordered and not shipped from 3rd Party

B

Ben75

New Member
Jurisdiction
Indiana
Hello,

I ordered an item from the Newegg marketplace through a third party seller. Newegg (California) invoiced me (Indiana) but the actual seller (who is Georgia) did not ship the item. Neither party has worked to resolve the issue, so I am going to send legal notice(s).

However, I am unsure which party is legally responsible. I paid Newegg, but the seller never shipped and, according to Newegg, they paid the seller.

Please advise, and thanks in advance for your time.
 
If you paid with a credit card you can likely initiate a dispute and get a refund. Contact customer service for the card you used.
Once resolved, buy your stuff elsewhere.
This will be much easier than anything else.

As for your question though, you should be dealing with the party that collected your money. They would contact the party responsible for shipping.
 
Thanks for the reply.

Already been through all of that. I paid by debit but MasterCard wants an admission by them of the mistake. No chance that'll happen.

Do I take your answer to my question to be that the party collecting the money is legally responsible in this case? Looks like I'm going to have to file in court, and just want to be sure I initiate against the appropriate party.

Thanks
 
Ben75 said:
Thanks for the reply.

Already been through all of that. I paid by debit but MasterCard wants an admission by them of the mistake. No chance that'll happen.

Do I take your answer to my question to be that the party collecting the money is legally responsible in this case? Looks like I'm going to have to file in court, and just want to be sure I initiate against the appropriate party.

Thanks
Click to expand...

I read the information I cited below.
If you wish to sue someone, it should be the vendor/seller.
That prospect is dimmed if the seller is located in another state, or located in another country.

In all likelihood, I see no satisfaction by taking this to small claims.
Small claims courts are all bark, no bite.
The lawsuit remedy is further diminished if the amount in question is less than $5,000.

This is from NEWEGG's website "T&C":
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Newegg.com SATISFACTION GUARANTEE - Newegg.com offers our customers a 30-day satisfaction replacement or refund guarantee on all purchases, except:
7-day replacement or refund guarantee on all CPUs, including Open Box processors. All other Open Box merchandise has a 15-day warranty period.
For CPUs, the base cost will reflect the current market value, and the 15% restocking fee will be applied after this adjustment.
Downloadable software may not be exchanged or returned for a refund after purchase.
DVDs are non-refundable but may be exchanged for a functional version of the same film by using the pre-paid shipping label packaged with your order.
Marketplace: If you purchase an item from a Newegg Marketplace seller and need to return it, you must return that item to the Marketplace seller rather than to Newegg. In general, Newegg Marketplace sellers will honor Newegg's Money Back Guarantee and Return Policy set forth above. However, certain exceptions may apply. Check the Seller's Policy Page for the return policies of individual Marketplace sellers. In the event of a conflict between Newegg's return policies and those on a Seller's Policy Page, the Seller's Policy Page return polices shall apply to your orders from that seller...
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Restocking Fee
A 15% restocking fee will be applied to all returns for refund. Shipping charges are non-refundable. No refunds after 30 days.
Marketplace: If you purchase an item from a Newegg Marketplace seller and need to return it, you must return that item to the Marketplace seller rather than to Newegg, and the return of that item will be subject to the restocking fee policies of that Marketplace seller rather than those of Newegg. Check the Seller's Policy Page for the restocking fee policies of individual Marketplace sellers.
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Bad to the Bone:
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Limitation of Liability
IN ALL CIRCUMSTANCES NEWEGG.COM 'S MAXIMUM LIABILITY IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCTS SOLD. NEWEGG.COM SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE UPON A CLAIM OR ACTION IN CONTRACT, TORT, INDEMNITY OR CONTRIBUTION, OR OTHER CLAIMS RELATING TO THE PRODUCTS IT SELLS WHICH EXCEEDS THIS LIABILITY LIMIT. NEWEGG.COM SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS FOR DAMAGES AGAINST THE CUSTOMER, OR FOR MALFUNCTION, DELAYS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS, LOSS OR DAMAGE TO EXEMPLARY DAMAGES, WHETHER OR NOT NEWEGG.COM HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES.
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Wiggle Room
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Refunds, Partial Refunds and Restocking Fees (US)
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Newegg.com -- Agreement on Terms, Conditions and Disclosures related to activation of wireless services and related phone purchases.
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I see.

On the last part: I'm obviously not a legal expert, but can these terms still be applied if Newegg is found to be in breach of contract?

Seems to me that in order for the terms of service to be applicable, there has to first be service...? Just doesn't seem that such a disclaimer absolves them from responsibility of fulfilling a contractual obligation.

In any case, I understand your point.
 
All of your contact should be with Newegg. I'd forget about suing them and just try to resolve by other means.

Did you ever receive tracking information? If so what is the status? If not, ask Newegg to obtain it.

How have you communicated with them? I see phone, email, and chat options available on their website.

What is the value of the items you ordered? At some point you have to decide if it is worth pursuing.
 
Forgive me, but I'm being brief because I don't want the discussion to head off into too many tangents. I'm not concerned with strategy at this point, just need a legal perspective:

Who breached the agreement, legally speaking?
 
Newegg is responsible to you, the 3rd party company is responsible to Newegg.
You paid Newegg for a product you have not received from the 3rd party. It would appear that the 3rd party didn't hold up their end, but for all we know a package was lost during shipment.

Before anyone can say who breached the agreement it must be determined what the agreement was and exactly what happened.

As Army Judge pointed out above, by using the Newegg service you agreed to certain terms that limit the responsibility of Newegg. The best you could hope for here is a refund as pursuing any legal avenue will certainly cost more than whatever it was you purchased.

You need to be in touch with Newegg and make sure you follow whatever their procedure is for obtaining a refund or replacement.

Ultimately, if the item is not received you are entitled to a refund. If they refuse to give it you do have options, but costly ones that won't make sense to pursue.

Your best bet is to forget a legal approach, make nice with the folks at Newegg, and ask them if they will pretty please issue a refund or reship the item.

Review the terms of service on the Newegg site and you might find a specific procedure for dispute resolution.
 

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