When a website uses a "browser wrap" or "agreement of adhesion" approach to its Terms of Service (ToS) document, relying on language such as:
Each time you access and/or use any of our sites or services, you agree to be bound by these Terms of Service and any additional terms that will apply prospectively to you. If you do not wish to be so bound, do not use any of our sites or services.
but does not require a user to click a button or check a box to positively indicate agreement to such terms, are there any jurisdictions that have held the ToS to constitute a binding agreement? On the other hand, what jurisdictions have held such ToS documents to be non-binding or unenforceable?
I am particularly looking for case law or statute law, or for other clearly reliable sources on the issue.
I want to emphasize that I am looking for answers from multiple jurisdictions, not just the US, and that I am looking for answers specifically about "browser wrap" ToS documents, not click-wrap or "sign-in wrap". I think that I know the US answer already, as i indicate below.
I understand that in the US such agreements are not enforceable, as Kwan V. Clearwire Corporation (United States District Court, W.D. Washington, Seattle, 2012) where the court wrote:
Finally, there is no dispute that Ms. Reasonover specifically declined to press the "I accept terms" button presented on Clearwire's webpage. The court is skeptical of Clearwire's position that, despite Ms. Reasonover's express decision not to press the button, she nevertheless should be held to be bound by the TOS by virtue of her mere access of the page and her retention of the modem. This is particularly so when Ms. Reasonover has testified that despite the fact that the modem never worked in her house, Clearwire refused to allow her to return it. Clearwire seems to want it both ways — insisting that consumers be bound by the TOS when they click their consent, but refusing to concede that they are not so bound when they specifically decline to do so. Nevertheless, the court finds based on the record before it that there are genuine issues of material fact concerning whether Ms. Reasonover had actual or constructive notice of the TOS. The court, therefore, denies Clearwire's motion to compel arbitration without prejudice with respect to Ms. Reasonover, as well.
This question is partly a followup to this comment in the thread Are public/conference speeches copyright protected? recently posted here.
