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Contracts of adhesion are not necessarily unenforceable-mostly they depend on two points, a 'take it or leave it' approach (which Terms of Use certainly have) and terms that a reasonable person would probably not agree to had they actually read the contract. Note that this refers to *terms* rather than *consequences*. IMO reasonable people would agree to the terms of Fictionwise, not expecting the circumstances to actually happen. (Note that I said 'reasonable' people rather than 'suspicious' people-I happen to be suspicious so I probably wouldn't have agreed had I not known I could back up the files & strip the DRM if I needed to.)
IMO you'd have a better chance based on the fact that FW doesn't make you agree to the terms with every purchase. Sure, you might read them when you set up your account, but do you think a 'reasonable' person would remember those terms two years later? And until something like this happens you'd have no reason to go back & review them either. So that *might* be a defense but please note, IANAL.
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