XC has always had only "By clicking the button above you confirm that you accept the Terms & Conditions" with a link to the terms page without customers explicitly confirming they have read and agreed to these terms.
I actually turned this into a checkbox for a few stores for that very purpose - to force customers to act on it. Although we know no one ever reads these.
Now it looks like just about anyone can go after any XC based site and argue they did not agree to anything.
Maybe it's time XC turns this into a checkbox instead to add some merchant protection.