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Comment by apoorvamehta | Hacker News Reader

Hey Caleb,

CEO at Instacart here. I want to apologize for the way you, and a small number of other early adopters of Instacart Express, were treated.

It's true that we changed the policy for Instacart Express so that orders under $35 were charged a delivery fee. We also did a poor job of notifying our customers of this. We did send an email, but due to a bug a handful of customers, yourself included, never got the email. That sucks, and we're really sorry.

Please rest assured we will refund you any delivery fees AND any subscription fees that you have had to pay as a result of this.

We are in the process of reaching out to everyone who could have been affected with the next steps.

Again, I'm really sorry we screwed this up and we're going to make it right.

Thanks, Apoorva

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You generally can't just change the policy - you entered into a contract with the people who paid $99 for a year of free delivery. You can change the policy for new buyers, but the agreement with the older ones still exists.

I'm pretty sure that, like most sites, they have something in their TOS that says they reserve the right to change the terms of offering their service at their sole discretion. When you sign up for the service you are agreeing to the TOS even if you pay a fee, and this is quite standard.

It sounds like they tried to do the right thing and notify customers of the change, and people could have chosen to unsubscribe if they didn't like the new terms, but there was some kind of bug and they are fixing it.

That sounds like hiding behind fine print, which is certainly legal, but I'm not sure how that makes it the "right thing". Why isn't the "right thing" honoring the original arrangement with existing customers, at least until it expires?

When you bring up contracts, the small print matters. It's still not clear what the original terms were, and since I wasn't an Instacart Express users I didn't see the company's messaging, but I'd assume they're not out to screw people to the tune of $8. Unlike most people on this thread, I assume the best of startups until they do something truly evil.

I never said they were trying to screw people, I just find it strange that it's apparently okay to offer a product for several months, take people's money for it, and then change the terms underneath them.

Sure I understand that Instacart isn't a charity, and they must have realized that this was clearly not a profitable business model. I guess what I don't understand is why they can't own the mistake and eat the loss. They didn't advertise "free deliveries for $99 as long as our math and assumptions hold", they advertised "free deliveries for $99 for a year".

And people paid them money for it.

Why is it unreasonable for Instacart Express customers to expect what they paid for? Why is it acceptable for Instacart to effectively bait and switch their early adopters, regardless of their motivations?

This would be equivalent to signing a contract and, on the reverse side of the contract, it stating that the drafter of the contract is not bound by the terms. Can't do it. Both parties are bound or neither is.

This is only partly related but just a heads up some courts have found TOS agreements illusionary in the past for including clauses that mention they can be altered at any time without the user's consent. Some courts may throw out the clause, a section of the TOS, or even the entire TOS as a result.

Just an example of precedence (you'll need to copy and paste HN drops the trailing period on the URL): http://en.wikipedia.org/wiki/Harris_v._Blockbuster_Inc.

I'm not a lawyer just good to keep in mind that the validity of such clauses is in question in courtrooms in the country.

I looked into this before and from what I understand, you cannot simply include "we change whenever we want" into your TOS. It is fine for small adjustments to the agreement, but when you release something that significantly impacts you users, you actually must re-send a notification of change and get your users to agree to the new terms. At least, these actions are most likely to stand in court. Just my research though, perhaps a lawyer could comment?

Instacart Express was a free trial until very recently - no one was charged for the service. When Instacart starting charging the $99 fee, they also sent out the email (which apparently didn't reach anyone?) and changed the policy such that it made sense for the company while also providing that people could opt-out on the new conditions. I agree 100% they shouldn't be changing the policy if people had paid for it (e.g., breaking the contract), but in this case everyone was getting a free service.

Then they shouldn't have auto-charged the $99 under the new terms - they should have had the users opt-in to the new service since it was different to what they initially signed up for.

Actually, no one paid for Instacart Express until March, 2013. And when we made changes to the plan, we intended to notify everyone first and give them time to decide whether to continue or cancel.

I never got the email. What I did notice is when I went to my account page I saw that it indicated that my free trial was going to end and gave me a chance to pay. I had previously heard from customer service that I had never been charged (but was not told that nobody had been charged).

When I saw this, I went ahead and paid (not knowing, of course, that the terms had changed). And my Instacart Express membership now says Aug 19, 2012 - Aug 19, 2013. But in this article, the OP shows a screenshot indicating his service is March 20, 2013 - March 20, 2014. Why is there a discrepancy here? By explicitly opting to pay from my account page, did I screw myself out of 7 months worth of Express service that the OP is getting?

This is quite common for Dish Network. They keep on increasing the price of some additional channel (in my case B4U music) that I have subscribed even if you have 2 year commitment.

You did not just changed “some policy”. You had the contract and tried to quietly change rules in the middle. If you really, really had to change rules for existing customers, you should offer them either accepting new rules or canceling their contracts and receiving their money back.

An explanation, an apology, and a fix. If only all companies that made mistakes could react like this!

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