I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.
Yeah, because, as I said: the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
So, when they terminate that old contract, it's based entirely on the terms of that old contract. You agreed to this up-front.
What's the alternative? Force companies to offer indefinite contracts?
Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.
If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.
Notification alone, is not enough. Agreement is required.
If you want to continue using the services, and know about the change, then that's legally, as cited in the actual court documents in OP, an agreement to the new terms.
You cannot cancel a contract for "any reason". In most jurisdictions that will be an unenforceable term.
Usage here being consent, is an unpublished ruling. It does not set precedent, it refers only to these specific circumstances, where clients sought to understand terms before choosing to continue usage.
Legally, usage with foreknowledge, is consent. Usage where you already agreed to terms implicitly, because you sought and understood them beforehand.
It will not always be an agreement to new terms.
> This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3
Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke.
Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too.
So, right there, you've already explicitly agreed to a contract that can be terminated if you don't accept updates.
> The company should not be able to change those conditions without my explicit permission.
The legal argument is that (a) you were explicitly notified of these changes, (b) your rights to use the service under the previous contract have been revoked, and (c) you're continuing to use the service.
So, either you're stealing their service, or you did in fact explicitly agree to the new contract - "“Parties traditionally manifest assent by written or spoken word, but they can also do so through conduct.” Berman, 30 F.4th at 855."