Hmm, it’s been awhile since I set up my Switch. Yup, if the user must agree to this at Switch setup, then you’re right.

That said a good lawyer would argue every game purchase is by default covered by its own right-of-first-sale and backup copy case law foundation, so would require a click wrap agreement affirmation to contravene that. Definitely that is not required for each new game. So I think Nintendo’s not on reliable legal ground at the very least.