We've all done it. But we can't help ourselves... we have no choice. I'm talking about agreeing to terms of service (TOS). We create accounts on websites or install software on our computers and in the endless clicks we make to create an account or get the software installed, there they are... the "terms of service."
Do we ever read them? Of course not. And for many reasons. 1) They are too long. 2) They contain too much legalese. 3) It makes absolutely no difference whether we disagree with them or not.
Many TOS have disclaimers and information about warranty... or most of the time that there is no warranty and if the software is garbage and destroys your system, it still is not the software maker's fault. Some provisions include information about where and how you can sue the developer or maybe they force you into arbitration and you can never sue. Check out Section 16 of Facebook's TOS. You must sue in Santa Clara County, California and there is absolutely no warranty for anything. Going further, we find that if Facebook is sued because of something a user does, the TOS require the user to indemnify Facebook. Does the average user have the financial ability to indemnify Facebook? Not likely.
But really, the point is that if you want to install the software, you have to agree to their one-sided TOS. If you want a Facebook account, you must click agree. If you want to install Angry Birds, you must click agree. The only choice is to agree or not install the software. Most TOS are generally the same so even if you try an alternative product, you end up in the same situation.
What really gets me is even if you bought software and did not agree to the TOS when you try to install the software, what choice do you have? Most places will not allow a refund on open software (due to piracy) so now you have an open box of software which you cannot return because you disagreed with the TOS but you had no idea what was in the TOS until you opened the box!
More recently though, courts are at least starting to take notice that TOS cannot be forced onto consumers without the user affirmatively clicking on something to show their acceptance. As explained fully in this post at Eric Goldman's site, Zappos (an online show retailer - personally I love Zappos) had their terms thrown out by district court judge in Nevada due to the fact that users were not required to affirmatively accept the terms by clicking an "I Agree" button. The reasoning is pretty sound.
It takes to sides to enter into a contract; one side to offer and one side accept. Well if no one accepts, then there is no contract between the two. Because no one clicked "I Agree," the TOS did not form a contract between Zappos and the user so the users cannot be required to live up to the terms in the TOS.
The result in the case is a good one - but in reality it is going to make little difference. If you want to shop at Zappos, you are now going to have to agree to those exact terms.