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.
IANAL either but I do know a little about contract law because I was involved in a legal dispute involving contract law [1]. One of the fundamental principles of contract law is that for a contract to be legally binding there has to have been a "meeting of the minds" [2], i.e. the two parties have to actually have agreed to the terms of the contract. Merely publishing terms of service does not constitute a legally binding contract. Think about it: I could put ToS on my site that say, "By using this site you agree to pay me $1M." If I were to try to enforce that I guarantee you I would not prevail.
Binding arbitration clauses in ToS are there primarily to make people think that they can't sue.
Nabla is correct and the prior two commenters are wrong. Although many people think that arbitration clauses are unenforceable, in fact they are completely and totally enforceable under US law in every state. When you take your [service] to court, it will get kicked out immediately and your dispute will be adjudicated by an arbitrator usually chosen by and paid by the [service], and that will be the extent of the justice available to you.
We started off the thread with "these TOS are dubious, they can be ruled unconscionable..."
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.
You're correct IFF the TOS constitute a valid contract. Contracts can be invalid for a number of reasons, including "one party wasn't made aware they were entering a contract".
>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.
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.
I didn't say that arbitration clauses are unenforceable. They are enforceable. In fact, one of the references I cited explicitly spelled that out in painful personal detail. What I said was that merely publishing ToS on your web site does not constitute a binding contract. If you don't have a binding contract, then nothing in the ToS is enforceable.
This is very region/system specific, the US and UK adhere more strictly to what was written than most of continental Europe. In Europe there is more weight on "reasonable" interpretation and consumer protection compared to the literal agreement. That makes things more vague, but the result is also that going to court with the claim "the terms are too unfavorable to me and I was forced to click OK" is accepted by the courts as a reason to ignore the TOS.
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.
IAAL and banking on a court voiding a contract provision is tenuous. "adhesion contracts" in the form of website TOS, click-throughs, etc. are upheld by courts.
In Europe, or at least Germany, there are consumer protection initiatives that have standing to sue in such cases. They sometimes take up individuals’ cases, and even take companies to court preemptively for onerous ToS. Mobile phone companies have been hit by such lawsuits quite a few times. Similarly, there’s an environmental group that has forced several large German cities to implement (partial) bans of diesel cars based on EU pollution limits being repeatedly being broken.
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.
Ignore the arbitration clauses and talk to your lawyer.