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cancellation and termination notice February 24 , 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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cancellation and termination notice
February 24 , 2018
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cancellation and termination notice
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Ken
    Thanks for all the help you've been providing the alarm industry for so 
many years.
    I have a question about proper cancellation notification on my Kirschenbaum contracts.   I require notification of cancellation specifically via their choice of USPS, UPS, FedEx or fax as long as it carries a signature.  Difficult customers push back relentlessly regardless of what they agreed to and will cite that email will be the only method they'll use and will further pound their chests via poor online reviews, which damages our reputation.  I feel that email and voice mail notifications can be easily counterfeited or otherwise faked . 
    Is there a method of verifying a cancellation via email that would not come back to bite a dealer in the rear quarters?
    Thanks
ANON
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Response
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    The Standard Residential All in One does provide for cancellation of the agreement; it's the 3 day notice of cancellation.  The manner of notice is regulated by statute and you can't require more than the statute provides for.  Generally, any written communication sent within the 3 days of execution of the contract will be acceptable.  You would be wise to accept any communication and call it a day.
    But I suspect that your question is not about the 3 day notice of cancellation.  I believe you are inquiring about a subscriber sending you notice to cancel the contract [well after the 3 days].  You refer to it as "proper cancellation notification".  Except in limited circumstances [PERS Agreement] subscribers do not have the right to cancel or terminate an agreement.  That is called a breach of contract and the contract has very specific remedies for that breach.  You should not modify the contract by adding notice requirements for terminating the contract because you are not condoning a breach and certainly do not want to put yourself in the position of having consented to the termination of the agreement [except when you knowingly do consent].
    One state that I know of, California, has an "early termination" option and you can provide the manner in which that election must be exercised.  In the Standard Form Agreements we deal with the early termination in California as we do with the breach remedy, although there is no legal fee attached to the early termination as long as the early termination fee is paid in timely manner.
    Be careful with termination letters.  You get a call from a subscriber who tells you, for whatever reason, they are termination or canceling the agreement.  Your response needs to be very clear so that the subscriber doesn't interpret that response as your consent to terminate without any further remedy.  I can't count how many times we are told in our collection cases that the alarm company agreed to the termination, so why is it now suing on the contract.   
    If your subscriber wants to terminate and asks that you stop service immediately, you need to make it clear that you will comply but that the subscriber remains liable under the terms of the contract.  The subscriber will save 80% of the remaining term and can certainly tender that amount or, if you are agreeable, continue to pay the monthly charge until the 80% is paid.  I say 80% because you have terminated service.  If you continue service then the subscriber remains liable for the full charge until you terminate service, then 80% of the balance thereafter.  If you have to commence legal proceedings or arbitration, you are entitled to recover your legal fees too.
    Should you terminate services?  If the subscriber wants you to terminate you can and should.  You do need that instruction in some verifiable way, some way that you can preserve and use as proof later, if necessary.  Any writing, including electronic, if you can comfortably identify as the subscriber's communication, will suffice.  You don't need a certified letter and you don't need a blood sample either.  A phone call probably isn't enough unless you retain the recording and you're satisfied you know who you're talking to.  You can also follow up with your own letter to the subscriber letting them know that pursuant to their request service has been or will be, on a specific date and time, be terminated.  That letter would be a good opportunity to let the subscriber know how much is owed on the contract.
    Reminder:  If you use our Standard Form Agreements we will represent you in your collection matters [and other contract litigation] at least through the arbitration process.  For collectionscontact Kathleen Lampert, paralegal, at KLampert@Kirschenbaumesq.com or 516 747 6700 x 319.  If you have other litigation you can contact me directly.  And when you're ready to sell the accounts contact Jennifer Kirschenbaum at 516 747 6700 x 302 or Jennifer@Kirschenbaumesq.com
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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