on the question of whether the two thousand and seventeen terms of service were innovation of the prior two thousand and thirteen terms or merely a modification about that now on that point it's a point to recognize that neither the district court in its ordered nor google in its answer embry disagrees with the premise that where the two thousand and thirteen terms included the promise that any changes to the terms will not apply retroactively that standard principles of california law with preclude google from making a change that did have retroactive effect it other words that both the order and google's argument stem from the premise that the only way you has the class to arbitration is if the two thousand and thirteen terms of service were extinguished and then notated with the two thousand and seventeen or so with my time i want to show the three main failings in the district court conclusion finding an ovation the st of those that i'd ovation of course had to be based on evidence and under both this court's precedent and california president that evidence must be changes that you were complaining that were excepted by you laterally when you accepted the twenty seven agreement so what is the matter ovation a party of thirteen a modification have to prove the validity of that modification now a very standard of course modification clause says something like any modification must be in writing and signed by the part but then if one party or another comes along and contends that they had an oral agreement i have to modify the contract it doesn't matter how clear the evidence is that yes they did orally agree to modify it could have been in front of modification was contrary to the modification clause that existed so it down so you really believe it i don't i don't really understand that argument if you and i have a contract that says we agree we're not going or amend our contract but then because of whatever reason we both eilat are really decide we want to amend the contract and the fact that we have spurs degrees we're not going to amend  stop us from then deciding bilaterally we want to amend even if the amendment is in some way contrary to the prior language that's the case with most contract amendments they change something including perhaps changing something that is totally totally contrary to what they st agree to a contract principles as i lateral agreement and so i don't understand why you really agree to change something even if retroactivity provision is carried forward into the two thousand and seventeen terms of service as well it's repeated at what is now section twelve and so we're not we're not seeing any language that i think contradicts or overwrite the prior prohibition on retroactive changes that had existed at that the prior prohibition or that language you're saying that continued on talks about the kind of changes little could make on its own but that's not what we have here either because you other than changes made under thirteen g the changes to the terms will not apply retroactive so i mean to me reading that is is fairly clear that changes to thirteen  not sure i understand how it helps your argument well i want to focus on the same language your honor it says other than changes made under section thirteen g but if we look at section thirteen g thirteen g pertains in fact it's titled future changes to dispute resolution agreement and so future changes certainly we have to where all future changes to the dispute resolution agreements would fall under this language in the new section twelve that it could be retroactive but generally the the anti retroactivity provision is still carried forward the the other thing that i would say is that if we're thinking about how these changes were promulgated there is only one provision in the two thousand and thirteen terms of service that allows for changes and that is section eleven which contains that and diameter activity provision there no other means well i think that there is another means by which it could be changed and that is through the notation because google and section twelve even if the two thousand and thirteen terms reserves the right to terminate the two thousand thirteen agreement but that determination has to be in writing and there is no terminations here there's no evidence of a terminations the word terminations was not used and so the i suspect that is in fact why both the district court and google agreed with our fundamental promise that a modification done under section eleven could not be retroactive and less there was a ovation the point because it's not been litigated below it kind of it calls to mind your office i have seen a supreme court's opinion from justice ginsburg last thursday about the a party presentment issue this issue hasn't been fleshed out in the way that your honour's questions have been directed and you know we just don't know google may have had very good reasons for not asserting that argument below  that none of us are aware of and of course google has extremely capable counsel and so i i suppose i would submit that this issue up to be left to the adversarial process had work to go hasn't advanced the argument i'm google the right to modify change or even a bandit the arbitration provision in the future unilateral come out called franco the gray stone that seems to say the death penalty line does not apply where the parties have expressly agreed to it and so i think that there's this new case unfortunately very it's very harmful to our argument in that respect but i do think that that's why that's part of the reason why notation is the only way out of it and innovation we would have to find some evidence of extinguishment now that brings me up to the to to focus on the court order and the case that are light on james b comcast now they're in contrast to here comcast amendment did provide very clear and convincing evidence about extinguishment the court notes that in all caps comcast had written and i'm quoting any prior agreement you have or had with comcast terminate on the effective date and is replaced to close it one more point is that the words of a contract matter you know corporate defendants are always telling plaintiffs in the court in contracts that he's unlike these that it doesn't matter if you didn't read the contract the words are right there and you're bound by well here the shoe is on the other foot and i think we shouldn't say well google like cobb you know it probably intended to use the word terminate it may have had very good reasons for not terminating that we just don't know why it's record for trying to do a modification that modification would have been invalid under the contract purporting to be modified now i don't like the use of my time i would i would love to answer for the questions or have one  good law it's not so much that the pair like a lot of cases is no longer a good lawyer on it but rather that the appellant has made clear that he's not pursuing an argument under that there is some of violation of an implied obligation or that there are somehow in the loser e contract problem here and that's based on a recent clarification of the peleg line we would say it's consistent with what  held all along which is that battle line of cases applies only in a situation where a modification is being dictated by one party unilaterally and in that case like here  here if you and i agreed to a contract and the term of the contract is that i will buy widgets from you and right now you the implied covenant of good faith and fair dealing which would be read into the contract to save it from being a loser but none of that applies here because there was no ability for google to impose  was what is really your key response maybe i misunderstood this but the military issue i thought would be the possibility of a change in the future by google and i thought your answer to that was basically was a pretty they opt out makes it not and it was cited in the appellants reply we haven't had a chance to walk through the so bear with me it's cited at page seven architect case and it actually confirms that the language that google used in the two thousand and seventeen times is precisely the type of contractual language that creates an ovation so in the architect case this is a california court of appeal case that the that as an example of california law on this issue and that case involved to arbitration agreements between the parties one in twenty thousand and eighty one in two thousand and thirteen and the question there was if the latter agreement no bait but it did contain an integration clause that's very similar to what we have here page seven of the west law citation that provision is quoted and it says quote this agreement sets forth the entire agreement between the parties relating to the subject matter here in and merges all prior discussions between them in a court went on to say two things about that clause that said st that provision signifies the party's intent quote to supersede all prior agreements and i went on again again about that provision that set the intended effect of that provision was to implement quote a complete replacement of all prior arbitration agreements so in other words a contract that supersedes a prior agreement is a complete replacement of the prior agreement not according that case went on to find that the was conditional on the new agreement being enforceable and and there were some other issues there that are ultimately are not in play here but the critical point is that where a contract says it sets forth the entire agreement between the parties on the subject matter declaration that starts excerpts of records ninety one and the provision that we've been debating in the briefing is ninety seven in the excerpts of record and the uses language is very similar to what i just read it says at ninety seven dollars section fourteen the quote these terms are the parties and hire agreement relating to their subject matter and supersede any prior or contemporaneous agreements on those subjects that language couldn't be any clearer that is an extinguishment of all prior agreements the two thousand and thirteen agreement does not remain in place has had some of that language but be it but it also says that it any prior agreement you have had on the effective date that is replaced by these agreements so of course your view that would have been surplus because they didn't need it they just had the standard birger integration language and that the language starts and at the two thousand and seventeen terms and there's there's no particular set of magic words that need to be used that's that's really the critical point here which is the terms have to reflect an intent is in  that the reason that the integration clause didn't apply there was because the integration what was being integrated was a a different subject than the prior agreement with a murder clause in that and that contract and they were there and looking at page thirteen  the merger clause or integration clause in that case related quote to the transactions contemplated here by and what the court found was well sure that that that would wipe out any agreement on those particular transactions but what it didn't do was wipe out prior agreements on a different set of transfers of real property so there's a there was that disconnect that well  there there was there are factual differences in both of those cases but of both of those cases at least on my reading the courts are expressing skepticism that a boilerplate and a gratian clause that appears as they always do in the end of a contract under the terms  the word are the words that are used and we're in agreement says that it is to quote the end hire agreement and it supersedes all prior agreements how can you have two parallel agreements operating at the quote this written contract was superseded by a subsequent oral contract so in other words the fact that a contract was superceded by another meant that there had been an ovation and that's in language that's used in the tw not even if the two thousand and thirteen term still somehow continued to have effect you still have to give effect to what the appellant actually agreed to and you click to agree to a set of terms and new standalone set of terms that obligates to arbitrate his claims including claims based on facts that arose before the agreement so even if you hypothesized as a circumstance where and thirteen terms in the two thousand and seventeen terms somehow operate in parallel in that that is hard to wrap your mind around when both say that they're the entire agreement and both say they supersede the prior  agreement that was d in place but assuming that that's the case and you're trying to resolve what the scope of arbitration is under that scenario the plaintiff agreement still has to be given effect  if section eleven applied or was still in effect it would apply only because it governs a particular type of modification made by posting google without an express acceptance by by the advertiser mr post said well section eleven is not the only thing that we have you over your time and i think we google didn't make that argument below the district court didn't decide it had neither side is briefed it to your honor's i would occur if you didn't hesitate before making a dispositive ruling on an issue that has not been briefed secondly on the you're also i want to encourage the court to keep in mind the unintended consequences if the court holds that the use of the word superceding works that ovation it's affecting it's no exaggeration to say trillions of dollars worth of california contracts with all sorts of ramifications that have not had briefed and that we cannot imagine right now rd my rd point that the merger clause itself was simply brought from a two thousand and thirteen terms of service into the two thousand and seventeen terms of service both google and district court agree that the two thousand and thirteen terms were merely a modification of their predecessor so we would need to find some way and there is  to say why that word worked in ovation in two thousand and seventeen not in two thousand and thirteen ad doesn't in all of the other thousands and thousands of additional commercial contracts out there  thank you both sides for the helpful arguments this case is submitted