October 12, 2011
************************
*****************
comment
****************
Total Connect and Alarm.com are NOT self monitoring. That's something that might be done with a tape dialer or something. Customers CAN NOT get Total Connect or Alarm.com services on their own thru those entities. They are only available thru an alarm company's central station. Thus, that's not self monitoring.
Now, the customer might get a text message from one of these services about a burglar alarm that just activated and call the alarm company / central station to say it's probably false; don't respond. That's still not self-monitoring. That's being a moron but it's also making the decision to issue a no dispatch.
Am I missing something from the original conversation?
David Myers
*******************
Response
*******************
I am defining "self monitoring" as no central station operator response. The systems that permit the subscriber to access their cameras or receive signals or messages on their Internet enabled device [smart phone or computer] do utilize servers owned and maintained by the manufacturers [Napco is one] or central stations who have purchased the servers [sorry I don't equipment]. You are correct that most alarm systems are connected to central stations and monitored. Subscribers have the option of having their alarm systems monitored at the central station, direct connect to police or other municipal services, connect to a guard manned station in their building or facility complex, or have no one monitoring that system and receive the signal on their smart phone. This final option is "subscriber self monitoring". If my description is wrong please let me know.
The contracts for the above would be Monitoring, which is central station monitoring. The Subscriber Enabled Monitoring Service Contract does not include central station monitoring.
*******************
Question re contract terms
******************
Aloha Ken.
We currently utilize your "Central Office Monitoring Contract" with our subscribers. I am working with a client, who works in the Insurance adjusting side of the industry, who is questioning me regarding the appropriateness of paragraphs 16 (INSURANCE) and 17 (INDEMNITY/WAIVER OF SUBROGATION RIGHTS/ASSIGNMENTS). According to her, these clauses seem more appropriate to a contractor-sub contractor relationship than a vendor-client contract. She also stated that paragraph 17 implies that she needs to make changes to her homeowner's policy in order to accommodate waiving subrogation of rights/assignments.
Please give me your opinion on these two paragraphs in particular so I can better explain to her why these clauses are in our contract. If the risk is minimal and because this client is a personal acquaintance of mines, I am willing to scratch both clauses, depending on your expert opinion on the risks involved in doing so.
Mahalo,
Dave Hamamura, President
Communications & Electrical Services Corporation
dba, Electronic Surveillance Systems
*****************
Answer
*****************
I assure you that the two provisions are not only appropriate but very important to your defense in the event of a claim for a loss. The "insurance" clause is an insurance procurement clause, requiring the subscriber to obtain and carry insurance to cover its premises and contents, and name you as an additional insured. The Indemnity and waiver of subrogation clause are also essential provisions and have been extensively discussed in this forum. Will you be asked to omit them? Yes. Will you or should you? Not if you don't have to, but if the deal is big and important enough you will omit or modify these provisions. There are other provisions that are intended to protect you from lawsuits and any one of them can be effective enough to accomplish that. The use of all of these protective provisions may be viewed as over kill, but I believe that the overall text of the document should make your intentions regarding your exposure and potential liability crystal clear, and the Standard Form Contract accomplish this. Tell your broker she can read up on these issues on my web site at https://www.kirschenbaumesq.com/emailarticles.htm
*****************
Question on take over monitoring
*****************
Hi Ken,
Thank you for your continued emails. They are very informative.
I had a question regarding oral contracts. We recently took a over a system that was monitored with another company. The customer had a written contract that had expired a few months prior to us taking over the system. When the customer sent in a fax cancellation she was surprised to get a bill for over $1000. The company claims she had verbally agreed to a new 36 month contract when they contacted her via phone at the time the initial contract expired. Do oral/verbal contracts have any leg to stand on in court and is this valid? She never received any paperwork stating that the contract had been renewed. Apparently they have a voice recording of her agreeing to the terms.
Thank you,
Erik Devisser
Contact Security Inc.
Chilliwack, BC Canada
****************
Response
****************
This is a question that should be answered by a Canadian lawyer - I know you're out there so let's hear from you.
In the states some states have laws prohibiting or restricting the enforcement of automatic renewal provisions. You can check your state out here https://www.kirschenbaumesq.com/autorenewal.htm There are also laws prohibiting or restricting the enforcement of verbal or non written contracts. In New York for example the "statute of frauds" prohibits the enforcement of a verbal agreement that is not able to be performed within one year. Thus, a 3 year renewal would not be enforced unless in writing.
I haven't checked but I don't think that statute have kept up with technology. I am not aware of any exception to a writing that would permit a recorded telephone or other conversation as a substitute to a writing. It's also likely in a residential setting, a new contract would require a cancellation notice and a contract that complies with all the consumer laws.