KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Challenges to Fire All in One provisions / comment on history of alarm industry
November 20, 2020
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Challenges to Fire All in One provisions
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Ken
I have a customer that is requesting changes on my Fire Alarm contract [the Fire All in One] to delete Paragraph’s # 15 [Indemnity, waiver of subrogation] and # 16 [Exculpatory] Can we amend those lines and to what extent that it will not harm my business? Please guide me. Thank you,
Paul
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Response
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You have made the legal review for these changes much more difficult because your criterion is the change should “not harm” your business. Just about any change to the Fire All in One will diminish the protection afforded by the contract provisions. Your level of tolerance for accepting some risk should correlate closely with the importance of the subscriber and the job. Some jobs are lucrative and accommodations in contract changes necessary to get the job. Even when a particular job isn’t lucrative enough to warrant contract changes the subscriber may be important enough to justify the time, effort, expense of making the changes and increasing the risk.
Two provisions were challenged. The Indemnity provision is included in a paragraph that includes provisions other than indemnity, such as the waiver of subrogation. Most subscribers are satisfied if you delete the Indemnity clause, which is only the first sentence in that paragraph. You can delete this sentence, but only when other parts of the contract are not being changed. It’s your insurance carrier who would, in the first instance, be affected by the deletion of the Indemnity Provision. Removing the waiver of subrogation clause substantially increases your risk and should rarely be done; most lawsuits against alarm companies come from insurance carriers exercising their subrogation rights. I should also note that most municipalities are prohibited by law from offering indemnity, so expect them to request that change. More importantly, there are other provisions in the Fire All in One that will provide contractual protection, so while your level of risk may be increased it’s still tolerable.
The Exculpatory clause can be modified, and for the more insistent subscribers, deleted, but again, only when other contractual provisions remain unaltered. If you get at least one challenge a month you should join the K&K Concierge Program. You get a half hour contract review each month for no charge, a $250 value. The program costs $145 a month and has other substantial benefits that make the program well worthwhile. Contact K&K’s Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304 or SSpector@Kirschenbaumesq.com for more information or to sign up.
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Comment on History of Alarm Industry
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Ken
In regard to the history of the alarm business, I thought I would share with you a short story written by Mark Twain in 1882 called “The McWilliamses And the Burglar Alarm”. The story is quite amusing but also quite compelling for folks in the alarm industry. The story opines on the shortcomings of not protecting second story windows, as well as zoning the alarm control with 47 clearly marked zones (I kid not, this is in 1882). It even delves into the nuisance of false alarms as well as bypassing zones. Who would have thought that all this was going on in 1882! Here is a copy of the story: https://americanliterature.com/author/mark-twain/short-story/the-mcwilliamses-and-the-burglar-alarm. Enjoy
Mark Matlock
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Response
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Thank you for sharing.
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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
www.KirschenbaumEsq.com
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