comment on customer canceling contract for slow or no police/fire dept response / Software webinar today October 5, 2023

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com
********
comment on customer canceling contract for slow or no police/fire dept response / Software webinar today
October 5, 2023

SEE WEBINAR REGISTRATION BELOW – REGISTER NOW
*
SOFTWARE WEBINARS:
         With all the discussion, and dissatisfaction, about management software our first webinar series is by software providers offering comprehensive software programs for the alarm industry.

TODAY'S WEBINAR:
Title:  Innovative Business Software:  operating software for central stations
When:  October 5, 2023 noon ET
Why attend:  Innovative Business Software is central station solution to smooth operation and integration
Who should attend: managers and owners
Presented by: Jen Kolind, President and CEO of Innovative Business Software Inc. 469 556 2822; jens.kolind@innovative247.com   www.innovative247.com
Hosted by: Ken Kirschenbaum, Kirschenbaum & Kirschenbaum PC
Register here: https://attendee.gotowebinar.com/register/2817426411948243036
*
TOMORROW'S WEBINAR:
Title:  Bold Group: Why you should choose Bold Group for your alarm business operating software
When:  October 6, 2023 noon ET
Why attend:  Bold Group provides comprehensive business management software solutions tailored specifically for the security industry with cutting-edge software empowering security organizations to efficiently manage every aspect of their business within a unified platform, thereby simplifying their operations. Wide range of features caters to the diverse needs of security organizations incorporating essential functionalities such as general ledger management, billing and invoicing, scheduling, workflow management, and more.
Who should attend: managers and owners
Presented by:  Julie Lichty, SVP, Product Management, julie.lichty@boldgroup.com   https://www.boldgroup.com/company/contact-us/
Hosted by: Ken Kirschenbaum, Kirschenbaum & Kirschenbaum PC
Register here: https://register.gotowebinar.com/register/5891194730763654750
*
Title: WorkHorseSCS
When: October 11, 2023 noon ET
Why attend: Alarm business operating software solution for Sales, Field Service, Customer Service, RMR (Recurring Monthly Revenue), Electronic contracts and Digital Signatures, all conveniently housed in one unified platform. Streamlines your alarm company's processes with Single Point of Data Entry solution. Integrates with over 40 Central Stations, along with leading platforms like Alarm.com, Alula, resideo, SecureCom, and SecureNet.
Who should attend: Managers and owners
Presented by: Steven Hayes, 941.229.8200 steven.hayes@workhorsescs.com www.WorkHorseSCS.com
Hosted by: Ken Kirschenbaum, Kirschenbaum & Kirschenbaum PC
Register here: https://attendee.gotowebinar.com/register/3965237386615522648

Title:  Cornerstone Billing Solutions: Solutions for your alarm business operating software
When:  October 12, 2023 noon ET
Why attend:  Customer Management Software and Automated Recurring Billing in one cloud-based software platform. Live customer support. Cornerstone's software includes: complete subscriber records, recurring details, billing history, quotes, job tickets, service calendar, mobile tech app, inventory, robust reporting, collections, central station/alarm industry integrations, and more. Our automated recurring billing ensures 100% of recurring is billed.
Presented by: Scott MacDougal, Founder and Owner of Cornerstone Billing Solutions. (847) 405-9517 ext 2 ; scott@alarmbills.com     www.alarmbills.com
Hosted by: Ken Kirschenbaum, Kirschenbaum & Kirschenbaum PC
Register here:  https://register.gotowebinar.com/register/790183156955638876
*
comment on whether customer can cancel contract for slow or no police or fire dept response from article on September 16, 2023

Ken,
          Regarding whether a customer can get out of an alarm contract for slow/bad service, I had a case many years ago that was on point. I had a case where AFA protected a number of buildings in NYC and missed two signals over a six month period, with one of them allegedly resulting in damages. Customer cancelled all their contracts and I sued them for balance of contract; Customer counterclaimed for damages. The first order of business was to get our limited liability clause enforced. It took going up to the Appellate Division but that finally got done. Then I moved for summary judgment on the acceleration clauses. Customer’s defense was that they were justified in cancelling and at the very least they should be able to offset our collection claims with any damages they incurred. We took a shot and argued that the limited liability clause showed that such events were contemplated by the parties in the contract and that the exclusive remedy for the subscriber’s damages (if there were any) was the dollar limit set forth in the clause and that cancellation was not an option. The court agreed with us and we collected the balance of contract on every one of the accounts, plus interest.
Robert K

another comment

Ken:
  Regarding comments by Lee Jones:
I explain to our customers that the police may not be quick but will eventually respond. Unless you are in an area that the police have stated the they will not respond and everyone, including the burglars, know this, someone is coming. The important thing is, if the customer is home, they know someone is coming in and be prepared.
As an aside, we still install exterior sirens. There are more important than in years pass. With the mass installation of "all in one" systems, where the only sounder is at the panel, burglars know that they have time before the police arrive. In Virginia, everyone is armed. With an exterior siren, neighbors know something is occurring and the burglar doesn't know if a neighbor is heading to the house, locked and loaded. Remember, security systems only take away the burglar's time. Stan Corn,
Alarms, Inc

Response
**
          Poor or no performance by the alarm company is quite different than police or fire department deciding it isn’t going to response to alarm signals or is going to put those calls on low priority.
          If Alarm Company fails to perform what it agrees to perform in the contract then it is in breach.  A breach, depending on how material it is, can be justification for subscriber terminating the contract.  That’s basic contract law.  Keep in mind I said it must be a material, not trivial, breach of the contract.  Also be mindful that while I suggest that the customer can terminate the contract without penalty, it cannot overcome the contract provisions, such as exculpatory or limitation of liability provisions.  So a customer could cancel for the alarm company’s failure to perform, breach of the contract, but could not recover damages beyond those provided for in the contract.  The limitation of liability is likely to successfully limit damages, other than a total breach, such as taking a deposit and not doing the job.  I wouldn’t want to test the limitation of liability on that scenario.  At least the deposit would have to be returned, even if more than the limitation.  I occasionally provide for that when negotiating with customer counsel when discussing the contract changes [usually for Concierge Clients, so join the Concierge Program to save money on legal fees for contract negotiations – and yes you need counsel assistance often enough]
          But what about police and fire department deciding on no or slow response?  It will be argued by the customer that the whole purpose of the contract is for police or fire response.  That position is not of course accurate because as I’ve pointed out, the monitoring and dispatch of signals is only one aspect of the alarm system and services.
          There is a provision in the All in One agreements that specifically deals with this issue, and it squarely provides that the customer is not relieved of any contract performance [in other words, has to continue paying pursuant to the contract] even if there is no or slow police or fire department response.  Surprisingly this provision gets little attention or push-back, but just last week it was raised by an astute counsel for a large company getting a fire alarm installed pursuant to a Fire All in One.  I refused to change the provision and stated simply that it wasn’t the alarm company’s fault if police or fire departments decide not to response.  It remained in the final contract.
          Frustration of purpose is a defense to a breach of contract, which means that if the purpose for the contract no longer exists one of the parties is able to cancel.  But frustration of purpose is not always clear, and a specific provision in the contract that deals with a specific issue, such as no or slow police or fire department response, will be enforced and no breach of the contract will be declared; the party seeking to terminate on that basis should not succeed and will be held to the contract.
          You don’t have the All in One?  Then check your contract form carefully to see how it addresses the issue, because if it doesn’t you’ll be left to the whim of the judge faced with deciding how important police or fire response was to the customer when contracting for the service.
*
Software and central station webinars

          If you haven’t signed up for the webinars you’re making a mistake.  The live presentations offer you the opportunity to ask your questions and get answers.  You can join on any device including your office computer or your smart phone, so even if in the field or driving you can join and even participate.
          If you miss the live webinar, no worry.  It should be posted on the K&K Website for alarm webinars within a few days of the live presentation; go here to check: https://www.kirschenbaumesq.com/page/alarm-webinars
*
Central Stations series: Why You Should Be Monitored By Our CS
Hear from the leading central stations and “Why you should be monitored by” that central station. The topic of remote operator monitoring from outside the central station facility and the dynamics that issue presents is sure to come up. The question you need to be asking is why isn’t your central station participating and why are you still using your central station if it’s not participating?

October 17, 2023 noon ET, Emergency 24
Registration Link:  https://attendee.gotowebinar.com/register/5032873072502046552

October 18, 2023 noon ET, Statewide Monitoring Corp
Registration Link:  https://attendee.gotowebinar.com/register/3560536843132524128

October 19, 2023 noon ET, Legacy Security Services
Registration Link: https://attendee.gotowebinar.com/register/4084258420664728661

October 24, 2023 noon ET, National Monitoring Center
Registration Link: https://attendee.gotowebinar.com/register/106284724856601695

October 25, 2023 noon ET, Dynamark Monitoring
Registration Link: https://attendee.gotowebinar.com/register/5050152997423183449

October 26, 2023 noon ET,  COPS Monitoring   Registration Link: https://attendee.gotowebinar.com/register/1774793620122519136

October 31, 2023 noon ET, Rapid Response Monitoring Center
Registration Link: https://register.gotowebinar.com/register/2959829660260960857
**
STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com
*
CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
*
ALARM ARTICLES:  You can always read our Articles on our website at www.kirschenbaumesq.com/page/alarm-articles  updated daily ***
THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily.
https://www.kirschenbaumesq.com/page/alarm-exchange
*
Wondering how much your alarm company is worth?
Click here:  https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth

Getting on our email list / Articles archived:
Many of you are forwarding these emails to friends or asking that others be added to the list.  Sign up for our daily newsletter here: Sign Up.
********
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