In this particular case, the terms do seem so egregious that they shouldn't be enforceable. But that is irrelevant to the general question of so-called "click-wrap" agreements.

A contract is supposed yo be an agreement between two parties. Traditionally, a contract needed to be "signed, sealed, and delivered" in order to be enforceable. A simple signature has long been considered to be acceptable for the "signed and sealed" requirements, but a paper contract still neds to be delivered to the other party in order to be valid. If I receive a proposed paper contract by mail, sign it, but then think the better of it and do not mail it back, the fact that a "signed" copy exists in my house does not bind me to the contract.

Agreeing to a "click-wrap" contract presented on a computer screen by software which one has purchased from a retail store is analagous to the contract which was signed but not returned. The physical media from which the software was loaded is my property, and so is the computer screen which presented me with the question of whether I agree. There was no actual interaction with the software company, so such "agreements" should be legally null and void. Copyright law still applies, of course, but there should be no other restrictions on what I do with the software.

In the case of software downloads, where the server requires an affirmitave response to the "Do you agree?" question before it will send the software, there is interaction, and the agreement may be enforceable, on the theory that the server's programming makes it a true "agent" of the software company, even though not human. But if the requested "agreement" occurs offline, then again, the downloader "interacts" only with his own property (the computer), and there is no valid agreement between two parties at all.

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