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IANAL, but it came up in a computing science/internet law course and in the Netherlands the current jurisprudence is that if you use (and continue to use) a ser

IANAL, but it came up in a computing science/internet law course and in the Netherlands the current jurisprudence is that if you use (and continue to use) a service you are reasonably expected to read, understand, and adhere to the rules and conditions set by the service. In this case it thus doesn't whether or not you even saw the contract. You are bound by the ToS because it can be expected of you to search for it during continued use of the service.

radmuzom 9y ago
What happens if the TOS state that you are not allowed to use an ad-blocker while viewing their website? (Honest question)
- phn 9y ago
  Disclaimer: Pure conjecture. I'd say the TOS have to apply to the "service" you're consuming and not the website itself. Otherwise, what happens if you use just a text based browser? Or any other means not foreseen by the TOS? An ad-blocker would be just the same, it's something that your browser does.
  - manigandham 9y ago
    Intent matters. Ad blockers are not the same as text based browsers.
- SimplyUnknown 9y ago
  There is another side of ToS in the Netherlands that I haven't mentioned: The ToS has to be reasonable. There is a blacklist which cannot appear in a ToS under any circumstance because it is unreasonable to ask from users. For example, it is illegal for a company to require users to agree that when they buy goods from their shop they cannot return it whatsoever. There is also a gray list: these are conditions that companies may ask users to agree to if and only if they can prove it is reasonable condition. Notice that this a reverse of the burden of proof: normally a user has to prove that some terms in the ToS are unreasonable which is hard. Now the company has to prove that their terms are reasonable, which is also hard but better for the user. For example, it is illegal for companies to document the religious beliefs of a person BUT if this is a service for certain religious community (e.g. a forum for a church) then the term that they have to disclose their religious belief is reasonable (given that they don't share this information with anyone, of course). As for the ads, I don't know. It might be unreasonable to have users agree to subject themselves to third-party ads in order to use the service. But again, I am not a laywer.
celticninja 9y ago
However if a ToS attempts to remove enshrined rights or includes terms that are particularly onerous then this can invalidate the section or sometimes all of the ToS.
JohnStrange 9y ago
I think this differs from country to country then, because I'm pretty sure that in e.g. Germany a contract is not valid or enforcable without prior explicit agreement from both parties. In Germany most ToS and EULAs are void anyway, because they are not presented to the user or buyer before the purchase or start of the transaction. Also, if ToS contain a serious error, the whole ToS is invalid. However, in other countries such as the US contract law is totally different, so this does not generalize at all. Also, IANAL.

radmuzom 9y ago

What happens if the TOS state that you are not allowed to use an ad-blocker while viewing their website? (Honest question)

phn 9y ago
Disclaimer: Pure conjecture. I'd say the TOS have to apply to the "service" you're consuming and not the website itself. Otherwise, what happens if you use just a text based browser? Or any other means not foreseen by the TOS? An ad-blocker would be just the same, it's something that your browser does.
- manigandham 9y ago
  Intent matters. Ad blockers are not the same as text based browsers.
SimplyUnknown 9y ago
There is another side of ToS in the Netherlands that I haven't mentioned: The ToS has to be reasonable. There is a blacklist which cannot appear in a ToS under any circumstance because it is unreasonable to ask from users. For example, it is illegal for a company to require users to agree that when they buy goods from their shop they cannot return it whatsoever. There is also a gray list: these are conditions that companies may ask users to agree to if and only if they can prove it is reasonable condition. Notice that this a reverse of the burden of proof: normally a user has to prove that some terms in the ToS are unreasonable which is hard. Now the company has to prove that their terms are reasonable, which is also hard but better for the user. For example, it is illegal for companies to document the religious beliefs of a person BUT if this is a service for certain religious community (e.g. a forum for a church) then the term that they have to disclose their religious belief is reasonable (given that they don't share this information with anyone, of course). As for the ads, I don't know. It might be unreasonable to have users agree to subject themselves to third-party ads in order to use the service. But again, I am not a laywer.

celticninja 9y ago

However if a ToS attempts to remove enshrined rights or includes terms that are particularly onerous then this can invalidate the section or sometimes all of the ToS.

JohnStrange 9y ago

I think this differs from country to country then, because I'm pretty sure that in e.g. Germany a contract is not valid or enforcable without prior explicit agreement from both parties. In Germany most ToS and EULAs are void anyway, because they are not presented to the user or buyer before the purchase or start of the transaction. Also, if ToS contain a serious error, the whole ToS is invalid. However, in other countries such as the US contract law is totally different, so this does not generalize at all. Also, IANAL.