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Citation? My understanding was that they are provided that someone has to affirmatively accept them in order to use your site. So Terms of Service stuck at the bottom in the footer likely would not count as a contract because there's no consent, but Terms of Service included in a check box on a login form likely would count.

But IANAL, so if you have a citation that says otherwise I'd be happy to see it!

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You don’t need a citation.

You just need to read OpenAI’s arguments about why TOS and copyright laws don’t apply to them when they’re training on other people’s copyrighted and TOS protected data and running roughshod over every legal protection.

IANAGL, but in Germany a ToS is not a contract and can be declared void if it's deemed by courts to be unfair.

Yes, though this is especially true when it's consumers 'agreeing' to the TOS. Anything even somewhat surprising within such a TOS is basically thrown out the window in European courtrooms without a second look.

For actual, legally binding consent, you'll need to make some real effort to make sure the consumer understands what they are agreeing to.

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