ToS have limits, people in a practical sense aren't really able to read and understand the ToS of every product they buy, which means a ToS can only go so far in the ways it allows companies to be predatory against consumers.
Has that been tested in court? I would have thought a user wilfully or negligently misreading a ToS would not be a good legal defence (not that I agree with how I think the law would play out)
> Unless the website operator can
show that a consumer has actual knowledge of the agreement, an enforceable contract will be
found based on an inquiry notice theory only if: (1) the website provides reasonably conspicuous
notice of the terms to which the consumer will be bound; and (2) the consumer takes some action,
such as clicking a button or checking a box, that unambiguously manifests his or her assent to
those terms.
Its part of why changes of terms generally require you to accept them, before you can continue using a service.
Unambiguous consent, and understanding of consent, are required, as ToS fall under contract law. Which does make most ToS... Unenforceable.
The claim there is that they never saw the terms of service updates, and thus weren't aware of an arbitration clause, rather than terms of service generally not being valid.