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This is purely hypothetical, based on an anecdote told on a web design lecture a long time ago.

Most websites nowadays require you to click on a little checkbox that usually says I agree to the Terms of Service when registering on a website, presumably to avoid any liability that may accrue because of your use of the site.

However, some sites allow the user to register without marking this checkbox (in the mentioned anecdote, one website accidentally allowed this simply because the check didn't work in certain web browsers), in which case, to my understanding, the user never actually agreed to the terms.

Should the user proceed to sue the website owners, could he argue that he never agreed with these terms simply by proving that it's possible to register without marking the famous I agree checkbox?

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One of the key fundamentals for the formation of a contract is that the parties demonstrate their intention to be legally bound.

There are two ways that websites usually use to show that intent by their users: click wrap and browse wrap.

With click wrap terms the user explicitly agrees to the terms and creates a binding contract by ticking a box or pressing a button. As far as I am aware there has never been a case where a user has been successful in claiming there was not a contract.

With browse wrap terms:

For assent to occur the browse-wrap agreement should be conspicuous, state that there is an agreement, and provide where it can be located.

it is certainly arguable (IMO with a good chance of success) that the stack exchange browse wrap, with its tiny link embedded among many others at the bottom of the page, is unenforceable.

For the circumstances you describe the site tried for a click wrap but due to technical difficulties got a browse wrap. If it can be demonstrated that the user saw the terms or a prominent link to them and continued this would probably be enforceable.

Licenses: if the terms contain the grant of a copyright licence then that can be enforced because copyright exists even if a contract doesn't.

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  • How does the website prove that in past such checkbox was present? I doubt any users remember this or can witness this with high reliability and there is no website archive for loginrequiring pages. The same goes for tos itself, who keeps a record of what company has which tos and assures that they do not alter it?
    – michnovka
    Commented Oct 30, 2015 at 1:52
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Usually you implicitly agree with the terms if you use the site, even if you don't click the checkbox. For example, quoting form the Stack Exchange Terms of Service:

By using or accessing the Services, you agree to become bound by all the terms and conditions of this Agreement.

Quoth the Terms of Use of Wikia:

In order to use the Service, you must accept these Terms of Use. You may do so by (a) registering for membership with the Service and/or Company or (b) by actually using the Service.

Yes, this site has a checkbox for clicking I agree when you register.

Third and last example: The Google Terms of Service:

By using our Services, you are agreeing to these terms.

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