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Joined 1 year ago
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Cake day: May 13th, 2025

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  • Be careful of just dismissing a ToS simply because some parts of it aren’t legally binding. A lot of it is binding and if you think otherwise, you’ll need to convince a judge of why that is. That’s going to require time and money that could have been saved by using another service with a more reasonable contract.

    Looking at your example of arbitration clauses, while those may not work in some countries, in the US that’s a different story. You can have an attorney argue that this term should not be binding, but there are varying factors that a judge will look at to determine this. Was there an option to opt out? How easy was it to opt out? How much time were you given to opt out? Etc.

    Arbitration clauses can be useful for courts since they offload work to external parties. So, there is a little extra work on your part to convince the judge that they should rule out that term. In most cases your best bet will be to have the judge allow you to use an unbiased arbitrator rather than the one that’s usually specified in the ToS. Even then, you’ll still need to convince a judge of that.

    For example, “browsewrap” in which “using this service constitutes agreement to our TOS” in which the service never actually shows you the TOS, is almost completely non-binding.

    That’s likely why there are so many ToS that put these in your face and have you click a button before you can continue with anything else. So, browsing a website probably wouldn’t be binding, but creating an account and using their service probably would be.