1-A Equipment Co. signed a sales order to lease Accware 10 User NT software, which is made and marketed by ICode, Inc. Just above the signature line, the order stated: “Thank you for your order. No returns or refunds will be issued for software license and/or services. All sales are final. Please read the End User License and Service Agreement.” The software was delivered in a sealed envelope inside a box. On the outside of the envelope, an “End User Agreement” provided, in part, “BY OPENING THIS PACKAGING, CLICKING YOUR ACCEPTANCE OF THE AGREEMENT DURING DOWNLOAD OR INSTALLATION OF THIS PRODUCT, OR BY USING ANY PART OF THIS PRODUCT, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF THE AGREEMENT.
. . . This agreement will be governed by the laws in force in the Commonwealth of Virginia . . . and exclusive venue for any litigation shall be in Virginia.” Later, dissatisfied with the software, 1-A filed a suit in a Massachusetts state court against ICode, alleging breach of contract and misrepresentation. ICode asked the court to dismiss the case on the basis of the “End User Agreement.” Is the agreement enforceable? Should the court dismiss the suit? Why or why not?