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 white list ken@kirschenbaumesq.com ******************************* Comment on exculpatory clause / Q&A re late fees / Do you need Directors and Officers Insurance September 10, 2019 *********************** Comment on exculpatory clause from article on August 30, 2019 *********************** Ken, I agree with your response to Dennis Stern, a long term friend of mine. You wrote: The alarm company should not assume the duty of notifying the customer that the contract has expired. It’s just one more thing that can go wrong. If a customer refuses even a month to month renewal the appropriate position is make sure there is no notice requirement. In fact the contract should make clear that there will be no notice. The Disclaimer Notice should also address this issue. It should make clear that when the contract expires, so does the service, without notice. If this approach doesn’t compel the customer to agree to month to month, consider walking away because this issue is not likely to be the only challenge to the Standard Form Agreement.
The second point I have underlined is exactly what the first underlined point is all about. Alarm dealers should take your last sentence and hold it close to them at all times. When you create an obligation to do anything that is not within your normal operation is when Murphy's Law will kick in. We must do month to month, or day to day at the very least. I am not exactly thrilled with saying nothing, even if it is a commercial fire account that bills out a monitoring service at 600.00 a year, its not worth it when you look at the net profit. There is no account worth having a very altered contract, for what one or two hundred net profit per year? Remember, no contract = no service Bart A. Didden, Executive Claims Manager Security America Reassurance Group, Inc. - SARG 877-872-1266 bdidden@securityamericarrg.com *********************** Q&A re late fees ************************ 1) Is there a reason why there is no reference to inform the subscriber that we will charge late fees if payment is not made when due there is no late fee provision in the All in One
2) Is it legal for us to assess the late fees even though it is not referenced in the contracts nor the actual invoice (we have a due date on the invoice which is a 15-day term from invoice date)
No, don't do it. You can charge interest from date payment was due at legal rate in your state. In NY it's 9% per annum. Your hammer if they continue to pay late is to accelerate the contract - then they owe the entire amount. Refer it to us and they will owe legal fees which will be a lot more than a late fee ******************* Do you need Directors and Officers Insurance ******************* Ken What is your opinion on Directors and Officers Insurance? If we’re considering selling the business within the next 3-4 years, I’m assuming it’s a wise choice. We have been advised that if VC’s are interested in purchasing the business then having this policy is a wise choice. Also, if we want to get the coverage and we’re planning on selling soon, underwriters aren’t too eager to write a policy. anon ********************** Response ********************** Directors and officers owe a fiduciary duty to the corporation who employs them. Fiduciary duty means undivided loyalty, etc. The corporation is owned by shareholders. If a director or officer breaches the fiduciary duty the corporation could sue the director or officer. If the corporation files bankruptcy the Trustee can sue the director or officer. Director and Officer Insurance is designed to cover these lawsuits. The insurance obviously makes no sense if the director and officer is also the shareholder. So closely held corporations don’t need this kind of insurance coverage, or expense. ************************** To order up to date Standard Form Alarm / Security / Fire and related forms, click here:www.alarmcontracts.com ************************* CONCIERGE LAWYER SERVICE FOR THE ALARM INDUSTRY PROGRAM 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. *********************** NOTICE: You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles *********************** THE ALARM EXCHANGE
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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
