September 1, 2011

 

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Comment

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Ken

I went before a judge with my alarm contract and with the exculpatory clause, the same as you have, but lost the case. The other side said that she could not understand how the DVR works and I had sent over a tech twice to explain how the unit works. After 8 months she filed a small claims action against us.

The judge looked at our contract and gave her the judgment. The contract did not help. So we had to refund her installation cost and we got back our equipment. Refund $3,000 and lost our labor,r time and cables.

Roger Tang,

Outdoor Protection Systems.

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Response

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An exculpatory clause in your contract is not going to guarantee victory in all cases. There are several issues that come to mind. First, "your" contract has a clause "same as" mine. Our records do not show that you purchased any of our Standard Form Contracts, or any contracts from us. Therefore I am not sure what your "exculpatory clause" looks like or reads like. I can assure you that not all exculpatory clauses are the same or are as effective.

Second. you don't seem to really know why you lost your case, only that you did lose. You don't mention having used a three day notice of cancellation with this customer. If you didn't, then after 8 months she could still invoke the 3 day cooling off period and demand her money back and to be restored to pre installation status quo.

Third, if the Judge believed that you utterly failed in your performance of the contract, either failing to install or instruct properly, then the Judge could have determined that you were in breach, permitting the subscriber to cancel the contract.

More likely, you were in Small Claims Court, or some lower court, where the Judge was not required to apply rules of evidence or rules of law, and could base his decision on "substantial justice", which can mean just about anything that isn't completely unreasonable or unconscionable.

Better luck next time, but don't give up on the exculpatory clause. I suggest you get the Standard Form Contracts. Then you won't have clauses "same as" mine, you'll have mine.