KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and white list ken@kirschenbaumesq.com
************************************
more on on sales tax / refund on terminated contract / alarm.com dealer concern
November 16, 2018
********************
more on on sales tax from November 9, 2018 article
********************
Ken,
I run my business in Connecticut. Rather than trying to figure out what’s taxable, what’s not, and if there are percentages of the job that apply, I simply collect the full amount of sales tax on every job I sell (except for legitimate tax exempt clients). None of my customers in over 12 years have ever balked about paying tax on their invoice. This way the great state of Connecticut gets their pound of flesh on every job, and there’s no margin for error.
BK
**********************
Response
**********************
I think you may be taking a serious risk if the sales tax is not due. You could end up on the end of a class action or attorney general investigation. You may be required to refund collected sales tax that was not due, and you may not be able to recoup it from the state even if you are required to refund it to your customers. You need to consult with a CPA or tax attorney and an opinion letter, or ask for an opinion from the sales tax department.
**********************
refund on terminated contract
**********************
Ken,
I have a customer who is no longer in contract. On 11/01/18, they paid for a quarterly invoice for monitoring services from 11/01/18 to 1/31/19. On 11/07/18, they requested to cancel services as of 11/16/18. Do we need to reimburse them for the period they paid for but now no longer want coverage for?
Anonymous
********************
Response
********************
This customer is on a month to month automatic renewal schedule pursuant to the terms of the Residential All in One. The notice to terminate was defective because it requires 30 day notice. I see two options:
1. Treat the termination notice as a nullity because it didn't give 30 days notice. No refund but I would not discontinue service until 1/31/19.
2. Deem the termination date December 7 and give them one month refund. You can wait until they ask for it.
********************
alarm.com dealer concern
********************
Ken
We have encountered Subscribers of other dealers who when asked "who is your alarm company" they answer "Alarm.com". Now I see why.
Aside from the Alarm.com rider, we are more concerned with this section regarding enforcement of Alarm.com T&C’s as a third party beneficiary to our contract, even if they cancel our agreement as a Dealer and the Subscriber is still under a term agreement (3yr or 5yr). Is this what you have encountered?:
3.4 Notwithstanding anything to the contrary in this Agreement, Dealer shall not sell any Alarm.com Services, or sell or install any Alarm.com-ready Product, unless, before any such sale or installation occurs, (a) Dealer has determined from printed or interactive written information provided by Alarm.com that the location or locations at which such Alarm.com Services will be used and at which such Alarm.com-ready Product will be located are within an area of wireless telemetry coverage in which Alarm.com Services are available, and (b) Dealer has entered into a Subscription Agreement with the end user customer for all Alarm.com Services and Alarm.com-ready Products being sold to or installed for such customer, which such Subscription Agreement contains all the terms and conditions in Schedule 1 (as Alarm.com may modify such terms and conditions from time to time, the “Alarm.com Terms”) and no terms or conditions that are inconsistent with the Alarm.com Terms or otherwise inconsistent with this Agreement. The Alarm.com Terms included with this Agreement shall appear in the Subscription Agreement as stated (as Alarm.com may modify the Alarm.com Terms from time to time), exactly in the same order, and in conspicuous print. Dealer shall enforce all provisions of the Alarm.com Terms on behalf of Alarm.com at Alarm.com’s request. Notwithstanding the foregoing, Dealer acknowledges and agrees that Alarm.com is an intended third party beneficiary of the Subscription Agreement and that Alarm.com is entitled in its own right to require due performance of the Alarm.com Terms by Subscribers and accordingly has independent rights of enforcement. Dealer shall cooperate with Alarm.com in any enforcement of such Alarm.com Terms by Alarm.com.
As always, we appreciate all you do for the industry.
JKL
*******************
Response
*******************
You can't have your subscribers use alarm.com without becoming an alarm.com dealer. One requirement is that you must incorporate alarm.com terms and conditions in your subscriber contract. I determined long ago that the alarm.com terms were not as effective as the terms in the Standard Form Agreement, and I therefore refused to change the Standard Form agreement to include the alarm.com terms. Rather, we recommend using an alarm.com rider to the All in One. That rider is a direct agreement between the subscriber and alarm.com. If there is a claim it's clear that the subscriber's use of alarm.com is governed by the alarm.com rider. The relationship between you and the subscriber will be governed by the All in One.
If there is a serious loss we'll see which one holds up better. I'm thinking the All in One; be sure to use it and get the alarm.com rider if you want to be an alarm.com dealer.
*****************
NOTICE: To ensure that you continue getting our daily emails please sign up with our other email delivery service. Click here: https://www.kirschenbaumesq.com/page/newsletter-sign-up You can always read our emails on our website at www.kirschenbaumesq.com/page/alarm-articles
*******************
This area is reserved for alarm classifieds, alarm company announcements, solicitations, offers, etc. Those wishing to sell or buy; borrow or lend; dealer program or dealer; central stations; insurance brokers; business brokers, insurance companies. Equipment to sell; looking for employees; subcontractors; mergers;
There is no charge to post a listing here.Include your contact information, phone, email and web site. If you would like to submit a posting, please send an email to ken@kirschenbaumesq.com. To create a reciprocal link to our website, click here.
**************************************************************************************
Many of you are forwarding these emails to friends or asking that others be added to the list.
Sign up for our daily newsletter here: Sign Up. You can read articles and order alarm contracts on our web site www.alarmcontracts.com
Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com