Plaintiff C&C International Trading Company d/b/a Chefs Trading ("Chefs Trading") runs chefstrading.com, "an online platform and service to facilitate the direct sales of aquatic products between sellers and buyers."3 "Chefs Trading sources fresh fish," including tuna, "from fishermen in South and Central America and other locations, and specifically Costa Rica."4 Chefs Trading says that it "provides the sales face for Costa Rican fisherman looking to do business in the United States."5
This case is about the sale of socially-conscious fish. Chefs Trading has a relationship with one of only two "Fishery Improvement Project" ("FIP") certified fish processing plants in Costa Rica, and Chefs Trading "is one of only two providers/importers recognized by, and who financially sponsors and contributes to, the Costa Rican FIP and is known as the ‘Costa Rican FIP Market Group.’ "6 According to Chefs Trading, "[f]air trade, sustainability of products and proper chain of custody provided by sellers of tuna and seafood products from foreign countries, including Costa Rica, has a value in the marketplace."7 Chefs Trading states that "[l]arge United States retailers and other Fortune 500 companies who are socially conscious, including but not limited to Wegmans, Marriott and Aramark, will only buy tuna from a FIP-certified provider/sponsor/importer."8
According to Chefs Trading, in order to capitalize on the demand for FIP-certified fish, "Chefs Trading's reputation and good will as one of two sources of Costa Rican FIP-certified tuna in the United States must be maintained and recognized to ensure that what is represented as the geographic point of origin of the tuna is true and accurate."9 To this end, Chefs Trading requires sellers of seafood on its platform to participate in Chefs Trading's "catch traceability tagging program."10 The program requires sellers to "provide CT with accurate identification of the [fish] species name and common name, manner of harvest, name of the harvesting vessel and captain, and google map link identifying the approximate location caught/harvested," and to attach a "tracing tag to the lip, fin or gill of each applicable fish."11
Eight tags are placed on each fish, and each tag has a QR code.12 "Chefs Trading pays for the CT Tags and ensures that its small fish houses and suppliers in South and Central America have those tags in place to carry out their contractual obligations."13 Chefs Trading says that it requires its tags to be placed on the fish "[i]n order to ensure proper chain of custody and traceability to validate the point of origin of tuna from a Costa Rican FIP-certified processing plant and the quality of the fish."14 The tags are "also designed to ensure traceability of the fish to its geographic point of origin to guard against counterfeiting by buyers who pawn off tuna in the marketplace as being from a FIP-certified facility, when, in fact, such tuna comes from a non-FIP-certified facility."15
Trinity "is a sophisticated business with years of experience in the sourcing, purchasing and selling of seafood and other food items in multiple States."16 After being introduced to Charles Dawn, the President of Chefs Trading, Trinity became a customer of Chefs Trading.17 On June 18, 2015 at 10:14 a.m., Mr. Shaun Garrity of Trinity created an account and electronically signed a contract on chefstrading.com.18 The Contract between Chefs Trading and Trinity includes the following relevant provisions:
TERMS AND CONDITIONS OF USE
C&C International Trading Company DBA Chefs Trading (hereinafter "CT") developed ChefsTrading.com as an online platform to allow direct sales of aquatic products such as seafood ("Product") between sellers and buyers, facilitated by CT as the import/customs clearance agent. In general, a seller authorized by CT ("Seller") may post Product prices (in U.S. dollars) and quantities (in U.S. pounds) on the Seller portal of CT's website, for each species identified by the Seller, thereby committing to sell such Product to the buyer(s) authorized by CT ("Buyer") .... A Buyer may submit a purchase order (or other request for Product, collectively "Purchase Order") to CT, and CT will provide a written/electronic and/or verbal Purchase Request Confirmation to such Buyer to confirm that the purchase of such Product on Buyer's behalf will be immediately undertaken on Buyer's behalf (or is underway); any Purchase Order and consequent Purchase Request Confirmation will constitute an agreement between the Buyer and CT, for CT's good faith pursuit of the purchase of the Product identified therein on the Buyer's behalf, and the terms of CT's Purchase Request Confirmation will govern if there is any discrepancy with the Buyer's Purchase Order.19
CT will also send a Sale Request Confirmation to one or more Seller to purchase the Product on the Buyer's behalf, in the quantity and quality identified in the Purchase Request Confirmation; and such Seller(s) may submit to CT an Invoice (or other transaction memorandum, collectively "Invoice") confirming such sale commitment to CT on behalf of a Buyer. Any identification of CT as the purchaser, consignee or other participant at any stage of any transaction will be purely to facilitate CT's functioning as purchasing agent on behalf of a Buyer, and for Product importation, Product customs clearance and any other regulatory approval, transit monitoring and transaction administration (collective "Service") ....20
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... Neither Seller nor Buyer has an recourse against CT for any liability or loss whatsoever except liability or loss proximately caused by the acts or omissions of CT or any of its agents in connection with Product importation, Product customs clearance and any other regulatory approval required for entry into the United States.21
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3. SELLER'S DUTIES: (a) Seller will: ...
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(4) For participation in CT's catch traceability tagging program, for each fish harvested provide CT with accurate identification of the species name and common name, manner of harvest, name of the harvesting vessel and captain, and google map link identifying the approximate location caught/ harvested to the best of your ability; (A) Agree to enter correct and verifiable data after proper documentation and verifiable paperwork is obtained. (B) agree to use all equipment, materials, hardware and software provided by CT properly and only with CT thru CT for CT's Buyers as directed by CT. (C) agree to not reproduce, replicate or otherwise use CT's software or materials in any way or similar way for any purpose; (D) promptly upon receipt from CT, attach any tracing tag to the lip, fin or gill of each applicable fish or sticker label to each item of Product according to CT's specifications.22
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6. BUYER'S DUTIES: ...
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(b) Buyer will not do any of the following:
(1) use, reproduce or replicate CT's name or any trademark, logo, advertising material, or tag or other tracing indicia, without the prior written approval of CT;
(2) open any Product package or use Product in any way until allowed by the FDA; or (3) use the Website, Service, or CT's tags (or other tracing indicia) for any product or purpose other than in accordance with this Agreement.23
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12. USE OF THE WEBSITE AND SERVICE.... Absent the prior written consent of CT, You will not access, reproduce, duplicate, copy, sell, re-sell, modify, distribute, transmit, or otherwise exploit the Website or Service, or any content thereof, for any purpose except for Your own use in accordance with this Agreement....24
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24. INDEMNITY ....
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(b) LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT CT, ITS OFFICERS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF CT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (COLLECTIVELY, "DAMAGES"), WITH RESPECT TO THE WEBSITE AND SERVICE, INCLUDING, BUT NOT LIMITED TO: (A) THE USE OR INABILITY TO USE THE SITE AND SERVICE; (B) THE COST OF ANY GOODS AND/OR SERVICE PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE WEBSITE OR SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA, INFORMATION, OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE WEBSITE OR SERVICE; (E) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDER OR OTHER THIRD PARTY IN CONNECTION WITH OR THROUGH THE WEBSITE OR SERVICE; (F) ANY OTHER MATTER RELATING TO THE WEBSITE AND/OR SERVICE; OR (G) ANY BREACH OF THIS AGREEMENT BY CT OR THE FAILURE OF CT TO PROVIDE THE SERVICE. TO THE EXTENT CT, ITS OFFICERS, EMPLOYEES AND AGENTS ARE FOUND LIABLE FOR ANY DIRECT DAMAGES RELATED TO THIS AGREEMENT OR THE USE OF THE WEBSITE AND SERVICE, LIABILITY FOR DAMAGES SHALL NOT EXCEED $100 IN THE AGGREGATE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.25
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22. NOTICE....26
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(c) GOVERNING LAW. Any dispute or other controversy arising out of or relating to this Agreement must be adjudicated by the first-initiated ... court proceeding administered in Little Rock, Arkansas. This Agreement and the relationship between You and
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