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.
