ianal and all that - but these tos are dubious. They can be ruled unconscionable, not enforceable because they are easy to miss, and being overly favored to tho company.
Ignore the arbitration clauses and talk to your lawyer.
Ignore the arbitration clauses and talk to your lawyer.
Binding arbitration clauses in ToS are there primarily to make people think that they can't sue.
[1] https://blog.rongarret.info/2011/12/cosmo-and-me-part-3-how-...
[2] https://contract-law.laws.com/contract-law/meeting-of-the-mi...
1. Binding Arbitration is enforceable.
2. Binding Arbitration clauses fall under contract law.
3. By virtue of point 2, Binding Arbitration clauses require a Meeting of the Minds in order to be valid and enforceable.
I think you're attacking a straw man.
They aren't dubious, they aren't ruled unconscionable. If you sign up for some service and agree to the terms of service that include arbitration, you're going to arbitration and nothing else. Yes, your click on "I agree to the TOS" is binding on you, no, no one cares that you were closing your eyes or crossing your fingers or whatever. Your use of the service shows your agreement.
No, that is not necessarily true. If I put in my ToS that by using my site you agree to (say) my installing malware on your machine that will allow me to go into your bank account and take as much money as I want, that will (almost certainly) not be enforceable.
>Yes, your click on "I agree to the TOS" is binding on you
There is no such button in this particular case.
>no, no one cares that you were closing your eyes or crossing your fingers or whatever.
This is a straw man. Nobody is claiming this.
>Your use of the service shows your agreement.
That very much depends.
So a mandatory arbitration clause can be written here, but you would fail to stop your customer from going to court if they disagree with the arbitration outcome.
Similar for things like excluding warranty, you cannot legally decrease consumer product warranty below 2 years in Europe. You would loose that case, because the courts have ruled that less then 2 years (or less than the reasonably expected economic life of the product if that's longer) is unfavorable to the consumer and thus null.
Is it similar to criminal defense or PI where an attorney seeks out the case and will then take a large fee if they win?
The concept of class-action lawsuits isn’t as relevant here, and there is no such concept as “punitive damages”. The best you can hope for is a court order granting you whatever Igor is in dispute plus any actual damages.
Lawyers’ fees and court costs are also awarded to the winner by default, with a sliding scale for such fees based on the value in dispute. You can sometimes find a lawyer who will take your case if they are optimistic as to your chances, but of the cases I know, this mostly happens when the lawyer also has some ideological interest in it (say privacy or labor law).
There is insurance you can buy that will cover legal costs, but you will need to convince them of your chances in any litigation that you want to initiate (as opposed to being sued). There are also a number of non-profits that offer legal services for specific issues, typically in exchange for yearly fees: unions, tenants’ organisation, and even dog owners’ or RC airplane clubs.