Eureka, Inc., inventor of the LBVC, a laser-beam vegetable chopper, ran a television ad that described the chopper and said, "The LBVC is yours for only $49.99 if you send your check or money order to Box 007, Greenville. Not available in stores." Gourmet, who owned a retail specialty shop, wrote Eureka, "What's your best firm price for two dozen LBVCs?" Eureka sent a written reply that said in its entirety, "We quote you for prompt acceptance $39.99 per unit for 24 LBVCs." Gourmet subsequently mailed a check to Eureka in the appropriate amount, with a memo enclosed saying, "I accept your offer for 24 LBVCs."For this question only, assume the following facts: Eureka shipped 24 LBVCs to Gourmet after receiving his check and memo, and with the shipment sent Gourmet an invoice that conspicuously stated, among other things, the following lawful provision: "These items shall not be offered for resale at retail." Gourmet received and read but disregarded the invoice restriction and displayed the 24 LBVCs for resale. Eureka has a cause of action against Gourmet for breach of contract only if
Eureka, as inventor of the LBVC, was not a merchant.  the invoice restriction was a material alteration of preexisting terms. Eureka's written reply that quoted $39.99 per LBVC but did not contain a restriction on retail sales, was not an offer that Gourmet accepted by ordering 24 LBVCs.  Gourmet was consciously aware when taking delivery of the goods that the television ad had said, "Not available in stores.