WEBINAR NOTICE: The Central Station series
Why you should use our central station
see schedule below for presentations
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Question: Can your contract terms be referenced on your web site
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Ken
We have been kicking around the idea of making our hard copy contracts more simplified and putting more terms and conditions on our website. We would have a box on the contract where the customer initials acknowledging having read the terms and conditions and accepting them.
My question is how aggressive can we be about putting things on the website as opposed to the contract itself? Foremost is the limited liability clause. We have a split of opinion here. Do you see any issue with putting things like that in the terms and conditions on the website rather than the body of the agreement itself?
I appreciate your opinion on this.
Robert
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Answer
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Incorporation by reference might work for operational policies and perhaps published pricing, but I would not put material or essential provisions on a web site and incorporate those provisions by reference. There are several reasons.
Residential contracts are usually governed at least in some respect by consumer statutes. Many states require that certain provisions be conspicuous and in particular font size and sometimes color. Also that a copy of the contract be provided at time of signing. Though the protective provisions that I often refer to [exculpatory clause, limitation of liability provision, etc] may not be required to be in any particular font or placement in the contract I think it prudent to consider that most judges will enforce those provisions only if clear and concise; in other words, only if they have to. I find this to be the case for the lower court judges, which is why we have so many appellate cases overturning the lower court. Since the protective provisions are the most important terms in the agreement that you will want to rely on it is too risky to remove them from the contract and then incorporate them by reference, especially when you are not providing those terms in a separate document at time of signing but requiring the subscriber to go to a computer to see these additional terms.
Thinking about it, the Standard Form Agreements do have one reference to a web site and incorporates the terms in the web site in the agreement. This is the arbitration provision and the rules of arbitration are incorporated by reference. This has been enforced by a number of courts. However I think the arbitration rules are not the essence of the agreement between the alarm company and the subscriber. So, the agreement itself has the arbitration provision, only the rules are referenced.
There are certain provisions that courts and often statutes require special treatment in the agreement. For example, provisions waiving jury trials or waiving the right to counterclaim often have to be conspicuous. Since the protective provisions also contain terms whereby the subscriber gives up rights it might otherwise have these terms should be easily found in the document itself.
I have long advised that electronic agreements utilize the Click Through method rather than the Wrap Around method for many of the above reasons. Requiring a subscriber to look to another document, one not even presented together with the written form, is too similar to the Wrap Around method.
Is there a place for any terms on the web site and then incorporated by reference in the agreement? I think so, just not the essential ones. The written agreement makes reference to manufacturer warranties; those could be set forth on the web site. You may have central station response procedures that can be on the web site; hours of office operation; emergency numbers; customary pricing for per call Service; charges for excessive unnecessary signals. I suppose there are many more terms that could be on the web site, but not the ones that would be considered material and run to the heart of the agreement. While defining what duties each party has will be material, so are provisions that limit or prohibit enforcement of certain rights that a party would otherwise have.
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WEBINAR ANNOUNCEMENTS
The Central Station Series
Why you should use our central station
Each Webinar will cover:
territory covered by cs
types of alarms cs equipped to handle or specializes in
description of cs facilities and equipment; redundancy of more than one location
general policies on handling alarms
what makes your cs stand apart from others
pricing - why your cs charges what it does and special deals if any
contracts the cs requires
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WEBINAR NOTICE: The Central Station series
Why you should use our central station
see schedule below for presentations
Sign up for each presentation. All Start at 12 noon EST to 1 PM
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October 23, 2014 - USA Central Station https://attendee.gotowebinar.com/register/1676699519071453697
October 28, 2014 - SentryNet
https://attendee.gotowebinar.com/register/6448324896921683457
October 29, 2014 – Rapid Response Monitoring https://attendee.gotowebinar.com/register/4898797453548148993
October 30, 2012 – COPS Monitoring https://attendee.gotowebinar.com/register/6318369219588363265
November 5, 2014 – Metrodial https://attendee.gotowebinar.com/register/5743009078427617281
November 12, 2014 - Statewide Monitoring https://attendee.gotowebinar.com/register/339270067719231489
November 13, 2014 - Centra-Larm Monitoring https://attendee.gotowebinar.com/register/3930780819384477185
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Speaking Engagements
If you would like to schedule a free live video/webinar presentation for your association meeting or event contact Eileen Wagda at 516 747 6700 x 312.
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Alabama Alarm Association. AAA's Fall Meeting and Trade Show - October 21, 2014 from 3 to 5 PM at DoubleTree Hotel 808 South 20th Street Birmingham, AL 35205 for more info contact AAA Executive Director: director@alabamaalarm.org (205) 933-9000