non-responsive customer still paying for service / sub questions contract legality February 22 , 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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non-responsive customer still paying for service / sub questions contract legality
February 22 , 2018
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non-responsive customer still paying for service
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Ken,
    I have a long time customer who has at times, over the years, been incommunicado unless they initiate the communication for some need.  They pay on time and never complain.   A few months ago I noticed their alarm system failed to send it's weekly test signal.  I tried to notify the subscriber via text message as I've found some people respond quickly to this type of communication, but there has been no reply. I've exchanged text messages with this subscriber in the past. The alarm system is programmed to provide annunciation at the keypads upon communication failure, so people at the subscriber's home would be aware of the problem as well.
    I've had a few subscribers opt to go with Comcast or Vivint, and some notify me immediately after the fact, and some I have to contact because of non-payment only to find they switched companies. Based on my experience with other customers, the lack of a test signal and no response to my attempts to contact them, I'm suspecting this subscriber has changed alarm companies.    By the way, I don't pursue subscribers if they cancel this way in the middle of the contract term, I just want to know so I can cancel the account with the Central Station.
    A week after the "no test signal", and my initial call to them, I received payment for their next quarter.  However, the payment appeared to be generated from a recurring payment instruction at their bank.  So, if they changed alarm companies, they may not have cancelled the bank instruction.   I followed up the receipt of payment with another phone call to them, left another message thanking them for their payment, notifying them of the failed signal and still no reply.  I deposited their check because I've not heard definitively what they prefer to do and I don't know for sure if they changed services. 
    Over the following weeks I placed telephone calls to the subscriber's cell and landline, leaving messages each time, still no reply.  I mailed a letter notifying them about the problem, asking for a reply and giving them an option to cancel the monitoring if no longer interested. I included a stamped return envelope for them to sign the enclosed cancellation form.  In my letter I offered to refund any fees from the date they notify me of cancellation.
    If this subscriber has changed services, I'd just like to know, so I can stop billing them and cancel the account at the Central Station.  I believe they got my message, that they paid for the next quarter, and chances are they'll be cancelling their instruction to the bank to stop automatic payments. Given their past history of not returning calls or messages, I think they're aware of the problem, but for some odd reason they prefer not to communicate with me.
     I'll send my quarterly invoice as usual, with a highly visible note about the alarm communication failure. If they've cancelled the auto payment with their bank, which I suspect they will, I'll wait two weeks past the due date before I send a cancellation letter. I think I'll be on solid ground in cancelling services under a non-payment situation.  If I receive another "auto"check from them I'd like to return it with a letter of cancellation, but I'm not sure if this will be contrary to the contract.
    Your comments would be appreciated.
Thanks.  Please keep me 
anonymous
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Response
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    If this is your only subscriber I can see how you would spend this much time and energy on the account.  But I am going to guess you have at least another subscriber.  You are spending way too much time on this.  Here is what you need to know:

• if the system failed to test you should notify the subscriber, in writing and retain a copy.  Let the subscriber know that the system is not testing and may need repair

• if you are under contract to provide repair service you can send a letter suggesting that the subscriber call for an appointment so the system can be checked and repaired under the Service Contract

• if there is no Service Contract and you are under contract to provide repair service upon request on a per call basis, if you want to provide the service, you can write to the subscriber that the system appears not to be communicating its test signals, may need repair, and you are available to repair the system if the subscriber pays for the repairs

• you may, but you don't have to unless your contract requires it, notify the subscriber that the subscriber remains responsible for the monitoring charges whether the alarm works or not.

• you should continue service with the central station as long as the subscriber keeps paying you

• you can retain automatic payments as long as your contract permits it and you are providing the services, so continue to pay the central station for this account

• you cannot terminate the subscriber for non-payment because the payments are current

• you can find some other contractual obligation the subscriber may have in your contract and request compliance; then if you don't get it you can charge the subscriber with breach of the contract and terminate the contract

    You've done more than you have to already.  I recommend the above.  The Standard Form Agreement, which you were not using for this subscriber, has provisions that the subscriber may not have complied with, such as naming you as an additional insured.  That would provide grounds for termination.
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sub questions contract legality 
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Ken,
    I hope you are doing well. I recently purchased your all in one contracts plus disclaimer back late last year and I have loved them. 
    I have a customer that says the All in Agreements have some legal language that would not stand up in court so I have reached out to him to see what he is talking about. Would it be ok if I relayed and questions/concerns he has about the agreement to you?
Regards,
Nick 
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Response
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    Always interested in the legal opinion of subscribers, whether they are lawyers or not.  It's hard to respond to a challenge like this because I don't know which provisions are being challenged.  Yes, I can guess.  And, I am confident they will be enforced in court.
    I waited for more info on this but Nick advised that the issues were worked out.  So the challenges remain a mystery.  
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THE ALARM EXCHANGE

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