Electronic Contracting - the legal effect of EULA's

Electronic contracting - almost everyone who has access to the computer has probably at some point entered into an online contract. The most common is the End User Licensing Agreement (EULA), which is often seen when installing a piece of software. But by scrolling down to the bottom and clicking "I agree", even when you don't have the slightest idea as to what you agreed to, are you legally bound to the terms of the EULA? In Hotmail Corporation v Van Money Pie Inc and Steven J Caspi v Microsoft, the US courts have said yes, as long as there is unambiguous assent to the terms and conditions (which included scrolling through the terms and conditions and clicking an "I agree" button to continue with the installation, however the browsewrap cases where the user has to click up the conditions seperately is a bit more ambiguous as to whether it is binding or not). Furthermore, in the case of L'Estrange, it was held that someone who signs a contract without reading it, is still bound by the contract as they are presumed to have read it (of course, this is subject to defenses such as non est factum, duress, unconscionability etc). So it does appear that they are binding (unless a software developer is in the business of sending out representatives to hold you at gun point unless you sign, but considering the general public don't even bother to read it and click "I agree" of their own free will, I think they figured it was probably a poor investment).

So keeping this in mind, it appears that many companies have failed to read their own EULA's! Recently, Adobe have released Photoshop Express, which is a free web based photo editing, organising and sharing service. In its EULA, it states that Adobe is free to do what it likes with any photos uploaded for use on this service eg. using a photo for its own advertising, without royalties or credit for the image. It is possible that they copy and pasted this EULA, and simply forgot to change it to suit their own needs. According to Adobe:

We've heard your concerns about the terms of service for Photoshop Express beta. We reviewed the terms in context of your comments - and we agree that it currently implies things we would never do with the content. Therefore, our legal team is making it a priority to post revised terms that are more appropriate for Photoshop Express users. We will alert you once we have posted new terms. Thank you for your feedback on Photoshop Express beta and we appreciate your input. - quoted from Ars Technica article.

According to the same article, Apple also doesn't appear to have read their own EULA for Safari, in stating that it is only to be run on Apple machines, when it has been released for other Operating Systems for non-Apple machines for almost a year now!