"Many jurisdictions will NOT parse a contract. How could they know which portions the parties would have agreed to if other portions are deemed unenforceable?"

Precisely. Which is why almost all contracts, and all EULAs that I've seen, include an explicit severability clause. It's intended specifically to allow the court to merely strike out the portions that aren't valid and read the remainder of the contract as if the voided portions had never been included. For example, from the Windows XP Home EULA, section 21, "If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.".

"Are you suggesting that even if you placed clear and conspicious warnings about the nature of the software, you could NEVER agree to it? Or that (as the FTC actually argued) the warnings were not conspicious."

Both. For example, when I rent a car, a clause in the contract saying I agree to be liable for the full retail value of the car if it's wrecked is reasonable and a court would, barring exceptional circumstances, enforce it. A clause saying I agreed to let the rental company install surveillance equipment in my home to insure my lifestyle wouldn't reflect poorly on the rental company would in all likelihood be ruled unreasonable and not related to the transaction at hand, and the rental company's going to have to show they were a lot more explicit about making sure I knew about it before the court will accept that I'd've agreed to that willingly. Software EULAs are simply starting to have the rules applied to them that've applied to everyone else for decades. Nothing earth-shattering there, and I doubt it's going to make a significant difference to any software companies except the ones trying to do things that'd've gotten any other company nailed for deceptive practices in any other line of business.

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