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additional insured / using proposal / comment on smoke detectors / question for fire alarm experts February 19, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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additional insured / using proposal / comment on smoke detectors / question for fire alarm experts
February 19, 2018
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additional insured / using proposal
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Ken
    I'd like your guidance on 2 issues.
1. We are being asked by a card access manufacturer to host their servers in our facility. They want us to carry 3 million in cyber liability (which is fine) and to list them as addl insured (which is not fine as per your writings).
    This job would be very profitable to us.  Is the addl insurance a deal breaker or can we limit the insurance in any way?
2. We are subcontracting for a large electrical firm and in turn subcontracting some of the work to our own subcontractor. On our proposal what language should we use to prevent electrical firm (or their GC) from requiring us to sign something later on that would be too risky to sign?
    What contracts of ours should the electrical firm sign and what should our sub sign?   What's done generally? Also a very profitable endeavor. 
Thanks 
Steve Sr 
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Response
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    Regarding hosting the card access manufacturer, adding them to your E&O with cyber liability endorsement may have a price which you should be passing on to your new customer.  It's curious that you are concerned with the additional insured issue.  Has this customer seen your Dealer Agreement?  That agreement is going to exclude or limit your exposure to liability, including cyber liability.  You have to be sure that adding this customer as an additional insured does not burden your carrier with having to provide primary, or even secondary, coverage if the claim has nothing to do with your services.  Adding a party as an additional insured can be tantamount to that party taking out the insurance policy.  Additional insured status needs to flow through the primary insured and not cover independent claims that affect only the additional insured.  Your insurance brokers should be able to explain this better than I can.
    Regarding subcontracting.  You should have an agreement between you and the contractor hiring you, and you will need a contract between you and the sub-subcontractor you are engaging.  Those contracts will allocate responsibility and liability.  You ask another curious question:  "On our proposal what language should we use to prevent electrical firm (or their GC) from requiring us to sign something later on that would be too risky to sign?"  
    Well, I hope you are not using your proposal as a contract, because then it's not a proposal.  Too often proposals are used as an "offer to perform" and once the customer "accepts the offer" the proposal becomes a contract, a binding agreement.  Your proposal should clearly state that it is not the contract and that a contract will have to be executed.  That contract should be your Standard Form Agreement, not the subscriber's form, if you can help it.  Once your contract is signed you are not obligated to sign another agreement.  That scenario comes up all too often also and then you have the battle of the forms.  The Standard Form Agreements address that situation, but it's always presents a contentious issue.  
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comments on smoke detectors from article on February 5, 2018
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Ken
    NFPA 72 regulations and the year effective are different in different States because of the issue date.  Some states are way behind in the years of acceptance for both NFPA fire codes, and NFPA's NEC codes.  
    In Maryland, a law passed three years ago affecting Smoke Detectors (stand-alone, battery operated) took effect January 01, 2018, and regulates that stand-alone, battery operated smoke detectors MUST be replaced with the new 10 year sealed battery smoke detectors.....and that every floor must have at least one of these new smoke detectors installed by January 01, 2018.  Alarm system smoke detectors are exempt from this particular law, however, other laws still require alarm system smoke detectors to be replaced every ten (10) years, or sooner if inspections and tests show they are not functioning properly.  
    Also, any building or electrical contractor smoke detectors .....installed per code for AC hardwired 115V smoke detectors MUST also be replaced if ten (10) years old or more, or sooner if found to not function properly.  I received this information both from Maryland's office of the Fire Marshall, and the office of Attorney General for Maryland.  Additionally, the VP of one of Honeywell's Eastern Divisions (Jeff Rosenberg) sent me a copy of the law.      There also appears to be some concern that FIRE and HAZARD INSURERS could possibly refuse some or all coverage if a homeowner or commercial building does not comply with applicable State laws..........legal issues are always a concern, particularly for us non-attorney people, which most of us are........
    I would suggest Alarm Companies comply with the law and to seek legal advice, such as Ken, where you're not sure of its interpretation and application.  
John Bonney, Sr. Engineer and Partner
Atlantic Security and Protection
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Ken
    With respect to smoke detector testing in nys. If you work for nys agencies check with their regulations. The code allows to be more stringent; therefore sensitivity testing has to be done every two years. Can not extend to five. 
Mike
CSS
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Response
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    My guess is that every fire marshal reserves the right to add, rather than reduce, standards.  File applications, get permits and approval when required.
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question for fire alarm experts
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Ken:
    I'm not sure if you're the right avenue to ask the question, but I've been following your forum for over 20 years and you have a large group of Security Professionals that may be able to answer my question, if you don't mind.
    Any way here goes, can you or any one confirm whether or not the Touchstone DOCSIS 3.0 Upgradeable 16x4 Telephony Modem TM1602, which is being provided by Spectrum, is NFPA Approved to replace phone lines or radio for fire transmission. 
    As you suggested I asked my central station and they didn't know.
Please let me know.
Mahalo!
Antoinette D. Boilard
Alert Alarm Hawaii
(808) 528-6401
aboilard@alertalarmhawaii.com
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Response
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    Maybe you should be using a central station that can assist.  Can anyone help her out?  
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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