Ken,
We use all your sales and central station contracts. In certain instanceswhen developers are involved with new construction mainly their lawyersoften disagree with our contract on certain points. The main ones are theones that limit liability even in our negligence. They generally say thecontract is to one sided in these items. They understand that we are notthe insurance company in cases where there are losses. They don’tunderstand when it is our negligence that causes the loss.I have never had an issue where our negligence has caused a loss but it isalways a sticky issue with the client.How do you advise handling a situation like that?
Eric
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Answer:
One concession that you can make regarding the exclupatory and limitationof liability clauses is that you can agree that you will be responsible forany property damage caused by your negligence while your employees areactually on the premises.In those states that do not enforce those clauses if there is grossnegligence, you exclude gross negligence from the clauses.You need to understand why those provisions are in the contract and youshould be able to convince your customers and their attorneys that you arenot an insurer, they need to get insurance, your insurance carrier requiresyou to have and use your standard contracts, and that your customer is notwilling to spend enough to purchase more equipment and services so that youwould be willing to assume more risk. [just show them the Disclaimer Noticewith all the items they are not getting, but could].
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There may be times when it pays to have the subscriber's attorney talk toyour attorney. I get involved in those conversations often. It usuallytakes about half an hour and usually the subscriber's attorney or contractmanager understands and goes along with the few changes I am willing tomake. If the contract is not worth engaging your counsel [or me] tonegotiate, then it's probably not worth your time negotiating either andjust pass on it.
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Here is comment on previous issue:Dear Howard in Boston, what are the initials ECV in you rcomments?To everyone else, there are several postings that use terminology (lettersespecially) which is not explained and assumed we all understand. PLEASE bespecific so us people on the learning side know what you are saying.
Thanks!
JR
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