Enthalpy represents and warrants to Client that:
(a) Analyses, interpretations and conclusions are prepared with a commercially reasonable degree of care, but cannot be guaranteed as correct or absolute;
(b) it holds all licenses and certifications required to perform services; provided, however, that any requirements specific to Client’s requested services are provided to Enthalpy prior to acceptance of samples; and
(c) it will use analytical methodologies in substantial conformity with published test methods. Enthalpy has implemented such methods in its Quality Manuals and standard operating procedures, as required. Enthalpy reserves the right to deviate from any such methodologies as necessary or appropriate, based on Enthalpy’s reasonable judgment, which deviations, if any, will be made on a basis consistent with recognized industry standards and/or Enthalpy’s quality manuals.
Client’s sole and exclusive remedy for the breach of warranty in connection with any services performed by Enthalpy will be limited to repeating any services performed; provided, however, that Client shall be responsible for providing any additional samples necessary to repeating such services. If resampling is necessary, Enthalpy’s liability for resampling costs will be limited to the lesser of $5,000 and the actual cost of resampling. Enthalpy purchases supplies from vendors that are provided to customers for the collection of laboratory samples, Enthalpy is not responsible for their malfunction or substandard performance.
Enthalpy (together with its employees, representatives, officers, directors, agents and affiliates) shall be liable only for the proven direct and immediate damage caused by Enthalpy’s gross negligence or willful misconduct in connection with the performance of services in connection with an order; provided, that, unless otherwise provided under applicable law, Enthalpy must receive written notice of any claims of such losses within six (6) months of the date of Client’s knowledge of relevant claims. Enthalpy’s liability for any and all causes of action arising hereunder (whether based in contract, tort, negligence, strict liability or otherwise), shall be limited to the lesser of (a) the amount paid by Client for the services and (b) $25,000. Under no circumstances shall Enthalpy be liable for any indirect, consequential, special, incidental or punitive damages, including loss of use, lost profits or otherwise.