I don’t think this matters in the way you think it does. If they can demonstrate that you have to click through the ToS to use the device and app, then the burden would be on you to show that you did not accept the ToS to use the device. But therein lies the catch: If you found a way to circumvent their setup process, you wouldn’t be using the device as designed or intended.
There's nothing to demonstrate. We will have no interactions.
The op implied (probably correctly) that their ToS is toxic. I am pointing out that there is no reason for you to enter into that ToS.
Are you suggesting that I, an anonymous piggyback user of their service, would blow up my anonymity (and all of the protections and peace of mind that it affords) by attempting to reestablish some form of legal contact ?
No. It's easy come, easy go and that's just fine with me.
Ok? Then it doesn’t matter if you accept or not.
The ToS doesn’t come into play unless there’s legal action. If you’re never going to enter into legal action with the company then it doesn’t matter if you accept the ToS or not.
I'm simply trying to reiterate - as often as possible: you do not need to tie your personal identity to products and services like this.
Merry Christmas!
Liability in civil court is not as simple as you posit. Severability and judge discretion are but 2 ways that immediately can invalidate this line of argument. The cause of actual damages are almost always scrutinized, meaning the company would have to prove that the legal agreement could somehow have prevented the damage. Courtrooms are often mischaracterized as following robotic rules and precedence to ill-effect, as if there aren't people in the courtroom using good judgement. This is largely because those cases are the ones most publicized, not because it's the norm.
The actual terms of the ToS will always be evaluated in court. You can’t, however, go into court and argue that the ToS doesn’t apply because you put a fake name into the app and left it in airplane mode.
You also wouldn’t get anywhere if you bought their device but used it with your own reverse engineered app or something, as the app is considered part of the product.