Yes - yours is just some optional text nobody reads or understands and is probably not legally required to adhere to. Theirs is a contract signed by their customer who they know did understand it.
Accessing the site may already mean that you agree to TOS. Also if you don’t see an explicit copyright terms on some text on the internet it doesn’t mean that it’s public domain. Same as checking a checkbox. Text being small and somewhere is not an excuse for a corporation to steal and sell other people’s work.
I know that text isn't public domain by default. I'm not talking about pirating IP. I'm talking about reading a website - which is a right that supersedes copyright - even using a computer that learns from it without storing a copy of it or distributing it.
No, you don't need to agree to TOS. I'm sure you never actually agree to them and you're not going to jail for it. If you believe that, I hope you never visited cnn.com, for example. Their Terms of Use is 11,000 words. Are you sure you have agreed to that when you clicked on some random news link? Are you sure you're happy to to surrender your legal defense and its expenses to them if they make a claim against you? You're OK that they have no liability for sharing your PII when they're not authorized to? You won't complain if you pay for a subscription and they don't give you access to the subscription content, don't refund your payment, and don't even tell you why?
That is why every ToS is meaningless unless you can somehow put a gun behind them as the ultimate enforcement with the courts, lawyers and the whole legal system as a fig-leaf-intermediary.
> what makes theirs not “optional text nobody reads or understands”?
You accept it. You pay consideration for it. If your website has a TOS dickover, that requires someone attest with their legal name and pay you $1, yes, it may be enforceable under some circumstances.
