That sounds bad to me!

The TOS argument was so awful it deserves some kind of bonus loss, but let's put that aside for now.

Let's say I paint a fence, and my neighbor complains I ruined a particular segment that shouldn't have been painted. Why can't I argue that this segment was on my property and that my neighbor gave permission to use that paint on all segments on their property?

Let's say there's a 15% chance the survey was wrong about the fence location, and a 15% chance the court disagrees with how I'm interpreting the agreement. If I can use both arguments I have a 2% chance of losing, which seems fair to me. Both arguments are reasonable, so why should I have to risk it on only one?