KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on has fire alarm account been tortiously interfered with/ Intellectual property and who owns it
August 15 2023
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Comment on has fire alarm account been tortiously interfered with from article on July 11, 2023
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Ken
          Correct analysis regarding tortious interference; but I would have also recommended that he contact the customer and the fire extinguisher company that their testing action was improper and to the extent it caused any operational problems he will not be held liable (or something to that effect)
Bob K
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Response
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          No business likes its customer being solicited or serviced, by a competitor, and that is particularly true when the customer is under contract for the service.  A competitor, and sometimes another trade that has no license or business to perform a fire alarm inspection or fire protection system inspection or service, has no business performing that inspection or service for your customer.  Unfortunately this happens all too often, and as Bob points out, potentially dangerous; dangerous to the customer and dangerous, as in increasing your risk for liability, to you. 
          This scenario usually arises when your technician arrives to perform an inspection only to be told “don’t bother, so and so already did it”.  It won’t matter if that tech is there on an RMR Inspection Plan or per call; you will want to be paid.
          But what happens when the customer suffers a loss and the alarm or protective system fails?  You are going to hear from the customer and when you point to some other company that shouldn’t have been there in the first place it’s only going to complicate the defense of the case, and of course not likely to help appease the customer.  Losing a customer under contract to a competitor is bad enough, but getting hit with liability because of the interloper’s deficient services is worse.
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Intellectual property and who owns it
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Ken
          We have a customer who uses a cloud based access control system.  The customer wants to move the control of this system to us and away from their current vendor/integrator.  The host has approved this move and is just waiting for the paperwork to make this happen. 
          The current vendor is telling us and the customer that they own what they are calling the “Cloud Node” which holds all of the programming for  the 47 doors of access control.  He said he will not release this to either us or the customer unless we pay him a substantial amount which has not been provided as of yet.  
          If we do not pay him, he will wipe out all the access control programming. We are trying to get copies of contracts now but does this make any sense that a vendor can hold a customer hostage with their programming.  The customer paid for all of the equipment and it is a system that was installed many years ago and additional doors have been added over time.
Name withheld
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Response
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          The All in One Agreements make it clear that programming is intellectual property that remains property of the alarm company, not the customer.  Customers may be entitled to passcodes, but not programming codes.  Here is the redacted language from the All in One
          “Provided Subscriber performs this agreement for the full term, upon termination ALARM COMPANY shall at its option provide to Subscriber the passcode to the CPU software or change the passcode to the manufacturer’s default code.  Software programmed by ALARM COMPANY is the intellectual property of ALARM COMPANY …”
          So the existing alarm company does not have to provide programming codes if it has the K&K Standard Form Agreement.  Of course the customer could have negotiated the contract and demanded the codes, but we don’t know if that’s the case.
          The other alarm company should not however wipe out the programming.  You are correct that the customer paid for the working system and is entitled to be able to turn it on and off, though not necessarily change the programming.  All of us have programs we use that we don’t have programming codes for, so the alarm system is no different.  The customer bought the system with certain functionality and that’s what the customer gets.  This needs to be specifically addressed in the contract, which it is if you’re using a K&K Standard Form Agreement.
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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