that she had subscriptions on and she agreed to five different terms and conditions a separate contracts for each of those properties of those terms were in effect as of september fifteenth and those are the terms that did not include in the arbitration clause our position is that the five contract she agreed to do not contain an arbitration clause she renewed or to actually change the type of subscription on one of those properties in march sixteenth april sixteenth on to those four properties homeboys has is attempting to amend the agreement that she already had with them she rejected that amendment and filed suit pursuant to the terms of the september fifteen terms  get with the timeline in march of sixteen on one of her properties she filed suit april they filed their arbitration agreement for their arbitration motion in july at the time they motion there was a different set of terms and conditions they say they filed under the february sixteenth at the time they filed the motion the april terms that come into effect they can't have it both ways were in the terms it says any subsequent amendments rights they didn't they chose the february of sixteen terms and i don't understand why they did that because there's nothing in the contract that says the terms at the time you file suit or what apply or the terms of the time that we follow that's a provision that is not found at all in terms of conditions what the terms say is these terms are in effect until the next terms go on in which case those terms now govern your arrangement with home away on this property and so at decide which terms applied to them which terms applied to the users and which terms they seek to enforce and i think that's what's the most important thing about this case is that no matter what the fed board sixteen terms can't apply to all fi reference to the consumer rules there's no link which was easy for them to do there's nothing that says specifically which consumer rule that they're saying the consumer is agreeing to so there's nothing clear and unmistakable about the delegation provision itself but that's not really the issue the issue is whether or not that's an illusory contract that's a separate agreement that's for the court to decide so we do think under kentucky law that the arbitration agreement and the delegation provision or formation challenges that we're making to deductibles the entire terms and conditions or just the arbitration will both but i think that the idea that the the unilateral right to change is a term of the arbitration agreement is clear because they have that right to change that decide it will power they seek to enforce the contract does that you're not saying the entire terms and conditions are invalid or maybe you are but i think the april of sixteen under kentucky law the april of sixteen terms  old saying they wanted to impose arbitration on the worst way and did their arbitration agreements and there are online consumer contracts that specifically say the arbitration agreement does not or the unilateral right to change does not apply to the operation they didn't say  they could have said that what their contract also is clear about in this is on page twenty five of our brief and this gets back to the issue of whether these are five separate contracts or one contractual relationship the the terms and conditions specifically talk about how each property that to the terms of conditions when you pay your subscription fee it covers just that property you can't substitute a new property and this is terms of conditions that applied to this property which creates a separate contract each of those separate contracts and under the september of fifteen terms required in the sun to file suit and lost in the in the western district of texas in travis county texas and that's what she did so she carried out her responsibility and her created to file suit within one year under the same roof september of fifteen terms and that's what she did so to the extent that home away seeks to amend those those terms also included a provision that allowed her to reject any substan changes and she rejected those upset judges and so to the extent that those four properties were continued continually governed by the september of fifteen terms of conditions that did not include any arbitration clause whatsoever it specifically said she case on the undisputed facts in feb twenty sixth teen home away issued new terms and conditions those terms and conditions included for the first time an arbitration agreement that arbitration agreement includes a delegation clause there's an express reference to the aaa rules which delegate to an arbitrator questions of arbiter billeted and the february terms and conditions on like the april terms and conditions as a whole gave members in express right to opt out of changes that they didn't like well did not opt out and in fact a month later she affirmatively assented to the february terms and conditions and she renewed recent scripts and she opted in and none of this is in dispute as she says on page eighteen of her brief quote does not dispute that the arbitration provision applies to her kentucky derby home even retroactively in other words that arbitration agreement is undisputedly valid it is undisputedly enforceable and that is all the court needs to know to resolve this appeal because every argument that mr moore just made arguments about the scope of the february twenty sixth to an arbitration agreement not about its validity and not about its in force ability he's trying to carve up this arbitration agreement which applies to any end all claims trying to carve that up in a way that implicitly only applies to the one property that she renewed in march twenty sixth and variations of arguments along those lines she tried to say doesn't cover the claims it doesn't cover other properties and cetera but all of these arguments and all these objections a disparate called black america we agree with the district court that these are meritless but right or wrong in the first instance these all need to be decided by the arbitrator because of the delegation cl incorporated so when the states have been applying those the clear and unmistakable standard in the courts the decisions that i've read we cited some of them in the arnold brief as well they're up there attempting to apply that clear and unmistakable standard which started at the supreme court  i forget the case where it was first articulated and then has applied since that's a provision of the federal arbitration act now and just as an aside i think there's some debate now as to whether that standard still exists after the rent a center case pok that because i think we satisfy the clear and unmistakable statement that makes it even harder and used to starting places doesn't incorporate and then the question as well is that reach this higher standard of clear and unmistakable get where i'm getting at is do you know of any cases in kentucky that have year applied the u n international trade rules and said that a can corporation of any of these satisfies a clear and unmistakable standard and given that that standard i believe is federal state can't meet can reach its own judgment but i don't think i buy on the score is a matter of state law and so i think the real dispute that is before this court is the question that mr ward let off with which is the arbitration agreement that applies is it really the februarys twenty sixteen arbitration agreement the one he  concedes is valid and enforceable and works at least says to the kentucky derby home or somehow there an argument that the april terms and conditions trumps those she chooses us mr size his name is simon accuses us of cherry picking the arbitration agreements came on a month later merely restated the agreement that the parties had entered into a month before the only changes between april and february were changes to non arbitration terms for instance home away updated its privacy policy and included that in the terms  conditions home away at a new paragraphs on terminations of listings and added that to the terms of conditions but what home we did not do from february to april is change the arbitration agreement and so in fact i think myside case is sort of gored on the horns of a dilemma if the april arbitrations agreement is valid then the super cision super session provision it says this supersedes preexisting agreements kicks in a valid agreement says the supersedes it kicks in and so we will arbitrate under able but if april is invalid for some reason then it can't supersede february bids one of the other you can't both supersede n b a illusory in effect this court held exactly that in the oleander case at pages five hundred  six to five hundred sixty seven a little later in time contract that has a provision that says this supersedes earlier in time contracts if the later in time one is illusory then it doesn't supersede because a loose rena's is a flaw in the entire contract it can to all of the other arguments that mr ward raises the phrase any and all claims we think should be interpreted by the arbitrator but that's about as broad as someone could possibly write in arbitration agreement many of the cases in fact i think all of the cases that mr ward has cited are cases where the arbitration agreements are just written differently they say claims arising out of a contract or claims related to a contract and if that were so then that would be a much narrower arbitration agreement but there's no principle of law forbids parties to enter in in a single contract to enter into a broad arbitration agreement that applies to claims that relate to other parts of their economic relationship and in fact the arbitration agreement here makes that clear it says quote it applies quote regardless of whether prior versions of these terms required arbitration it put ms simon notice that there's arbitration agreement was going to cover claims that predate and possibly use unrelated to this particular february terms and conditions let the court has any questions we think that there should be in a firm firstly because of the delegation clause but if the court wants to get into the merits as a district court did then we think all of those arbitron building arguments ultimately lack merit and that she must arbitra decides that it is one contractual relationship and that a prole arbitration agreement was never formed then it should go back to the september of fifteen because the september fifteenth terms she had the right to reject changes and the arbitration clause to the extent that they sipped sought to amend that agreement to add arbitration clause or to change the terms of that those contract those contracts those four separate contract should rejected those changes she was never on notice that the terms that she was a green to in march of sixty would amend other subscriptions that had specific start dates the subscription agreement she that were previously effect for her properties are very specific to those properties on page twenty five or brief we have a number of those terms that talk about how those are specific to those problems home away could have because they have multiple trying to tell the users that it was amending their other subscriptions through this separate agreement it could have said that they could have said that clearly it doesn't say that clearly it doesn't say anywhere this is amending your other subscriptions that may run out tomorrow or may run out six months from now if it said that it was clear then they would have a better argument but it doesn't say that and so that she was not on notice that they were seeking to mentor september terms so to the extent that the arbitration agreements are different in february and april because of that unilateral right to change they should have brought this arbitration motion under the april terms those are the terms that were in effect those were the superseding terms they chose to bring it