EverThirstWater $($ETW$)$ is a bottling and distribution company located in Fayetteville, Arkansas. ETW, via a series of emails, agreed to purchase bottled water from NESTLE USA, headquartered in New York, NY$.$ The emails provide that ETW will purchase $100$ palettes of bottled water at $$1000$ per palette, to be delivered on or before May $1$ to the loading dock of ETW, $123$ Commercial Street, Fayetteville, Arkansas. NESTLE accepts by email, with a standard provision that should "any controversies arise under this contract, the dispute will be submitted to binding arbitration in New York. ETW does not respond to this provision. Both parties are merchants. Which of the following best describes this situation?