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comment on cs notifying AHJ / comment on contract changes and electronic contracts April 13, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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comment on cs notifying AHJ / comment on contract changes and electronic contracts
April 13, 2018
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comment on cs notifying AHJ from April 7, 2018 article
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Ken
    Why would a central station ever notify an ahj unless he/she/it is on the call list. I can think of several reasons the test signal could failed over a continued period of time; none of which would require a call to the ahj.  My only issue is the involvement of the ahj.  Was the central authorized by the dealer to call the ahj?  Would this not constitute a breach of contract between the central and the dealer?  I know I am pissing in the wind on this question...what central are you?  
Mike 
Custom 
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Response
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    I think you missed the point.  Some subscribers - and dealers too - are so remiss, negligent, aloof, out to lunch, non-responsive - that a central station may be left with no alternative other than to notify the AHJ.  For most of you, thankfully 99% of you, it's hard to imagine how an alarm dealer and subscriber could be so non-responsive to ensuring the proper operation of the alarm system.  You question whether it might breach a contract between the dealer and the central station if the central station reaches out to the AHJ.  Maybe it will, but that may be preferable to the central station exposing itself to a lawsuit and possible damages when a subscriber suffers a loss and the alarm is not operating.
    Do you think that a subscriber who knows that its alarm system is not operable would refrain from suing the central station if there was a loss and no alarm was reported to the AHJ?  Would you be surprised that I have had cases - defense cases - where a fire alarm system never had a phone line or any other communication pathway - and the subscriber's insurance carrier sued in subrogation anyway.  Where fire alarm systems report failure to test as the only signal before it stops reporting at all, and after the fire claims are made against the central station.  What do you think a central station should do if it's monitoring a breathing machine and the dealer and subscriber won't respond to test failure and other trouble signals?  Do you think it prudent for a central station to continue charging for monitoring [this applies to a dealer also] when it knows that the alarm system is not operable and monitoring is a charade?  Why should it, to collect the couple of bucks a month?  
    You guys work very hard getting subscribers and growing your business [your RMR business hopefully].  What single subscriber or single situation is worth risking everything?  No reason to stick your head out and no reason to fail to take prudent steps that reasonable people would expect.  They may end up on your jury.  So, yes, contact the AHJ and anyone else you can think of that the alarm system is not operational and life safety is at risk. 
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comment on contract changes and electronic contracts from April 7, 2018 article
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Ken,
    Thank you for your usual valuable advice. In this instance, your comments to the subscriber’s attorney in Florida that wanted to modify the contract provision that limits liability is very helpful. Your comparison of the car rental industry is a good one for our industry as it provides an “ideal” contracting goal. The challenge lies within the alarm/security industry owners. Unfortunately, there are companies that will sacrifice long-term risk for short-term revenue. It’s important for owners and executives to know that modifying terms and conditions weakens not only their own companies’ abilities to avoid risk but, it weakens our industry in general.
    One note about your example of the car rental contract, more and more are going to electronic agreements (on an iPad type device mounted on the counter) and then printing just the accepted terms and conditions. This may have a place in the Alarm/Security industry. However, I’m concerned about the enforceability of these types of a “click-through” agreements. Do you know of any litigation where there was an issue of enforceability due the form of electronic contracts?
    Thanks again for your dedication to our industry.
Best,
David Coughlin
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Response
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    You need not be afraid of electronic contracts.  Does anyone doubt that paper contracts will soon be as popular as a Polaroid or Kodak camera?  Click through agreements are much safer to use than wrap around agreements.  Click through means the entire agreement is on a single page that the consumer scrolls down, clicking at variable intervals acknowledging particular provisions, and finally acknowledging the agreement as a whole at the end.  Wrap around presents the same contract but then goes to a new page for acceptable.  If safeguards aren't built in to record that the consumer is required to actually read the agreement before moving to the acceptance page, there could be issues of enforcement.  I prefer the click through method.  I am also a fan of more clicks rather than less.  
    But the original issue was not electronic contract, but the alarm industry permitting the alteration and modification of their contracts.  If there a trend in that direction alarm dealers and central stations would be wise not to join those ranks routinely permitting modification.  Of course, it's more important to make sure you start with the right contract.  From my experience, and in my humble opinion, if you don't use updated 
Standard Form Agreements with the Kirschenbaum TM and copyright, then modification may not matter; your contracts may invite scrutiny and beg for modification.  If you have the right contract then every change you permit reduces your protection and increases your risk.
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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