Regardless of the understanding when ticking the box, the courts (in the US) have upheld shrink wrap contracts and rejected the “I didn’t actually read the TOS, so I can’t be bound by them” argument.[a] Basically, you’re SOL.

[a]: The reason being: you checked a box acknowledging that you read them so you can’t claim you didn’t because then someone could read them, then claim they didn’t. It’s a terrible abuse of contract law, but it is unfortunately the world we live in if the legislature won’t fix it.

For consumer contracts, many European courts take exactly the opposite tack, refusing to enforce surprising provisions against the consumer.

Isn’t that because there are regulations that say those provisions aren’t allowed (whether directly or indirectly)? The US doesn’t really have such laws.

It stems from fundamental difference in how civil law and common law think about contracts. In civil law, a contract is typically only valid to the extent both parties signed in good faith and have a similar understanding of the ins and outs. It's my understanding that in common law, contracts are essentially creating law.

Surely you can’t stipulate just anything in a contract and have that upheld as binding by a court, even in the US?

>Surely you can’t stipulate just anything in a contract and have that upheld as binding by a court, even in the US?

That's a great question. I'd expect that courts would not uphold claims to one's first-born child[0][1], but only because that sort of thing is already illegal (human trafficking). As for stuff that isn't illegal, I expect that YMMV.

That said, people actually "agreed" to give up/assign their first-born children with these "Click-wrap" agreements.

That people are so cavalier about such things should be a huge red flag for regulators to require not just a link to such terms, but that both parties should be required to demonstrate their specific understanding of terms and conditions before such a contract can be considered enforceable.

But that's not how US courts have interpreted this sort of thing. So, as always, Caveat Emptor!

[0] https://www.theguardian.com/technology/2014/sep/29/londoners...

[1] https://arstechnica.com/tech-policy/2016/07/nobody-reads-tos...

Edit: Fixed spacing.

Well, you can be technical about it... The fact is that this is unethical behavior and should absolutely be called out and made more visible.

Oh for sure. I completely agree, and think something should be done legislatively about it (I can’t give “informed consent” when I have to use Zoom for school (for example)). I was just pointing out a fact regarding the US and these types of contracts.

I have a game on Epic and to download an update, which you must do to be able to play, it forces you to accept a new gigantic TOS that basically allows them to install anything on your PC for any reason and they claim to not be responsible.

Also says that any claim you make has to be made in some particular US court. WTF, this is a game I bought in Australia.

There were pages and pages of other legalese but those are the parts that I remember.

I was so angry after reading it that I haven't accepted it or been able to play the game (that I paid for) since.

What kind of bullshit is that? Changing the terms of something that I purchased six months earlier?

I wonder what would happen if I take it back to the store and ask for a refund because I can't accept the TOS.

I don't give even the very slightest of a whiff of a fuck about what a US court says or does, as it has absolutely no bearing on my life whatsoever.

It is fine to put unexpected things in ToS.

It is nice and good for your reputation to call out these unexpected things, make them very visible and make sure they are hard to miss.

This does not always align well with business incentives, but I don't think that being insidious helped the company's bottom line in any way. It's just lack of attention to customer experience, not malice.