January 10, 2011
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QUESTION
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Ken,
Once again, thanks for all the insight. I have a situation I thought was relevant.
I am a commercial fire contractor and I have come across yet another customer looking to get me to sign what they call a "Standard Contract" for work I am going to perform ( Please note the 13 page contract). I use your contracts and of course they want to attach it as Exhibit 'A", unsigned. I don't think that would be a good practice. I have included the contract for you yo review if you want. I am interested to see if you have the same opinion I do. The indemnification clauses stick out for one.
I have to stop myself from laughing when they refer to these contracts as "standard". Unfortunately, customer provided contracts are becoming a standard thing. I ask them when you go to the dentist, do you make him sign a contract? When your plumber replaces your water heater, does he sign a contract? Did the car dealer sign a contract when you bought your las car? Aren't I obligated to dictate the terms of the products and services I am providing?
My questions are this. I know you have addressed the issues with getting a customer to sign the contract and I wonder if you could brush on that topic again and is there a situation in which my contract could be attached to a customers contract and still hold up?
In other words, are there terms that would protect a customer from lets say finishing on time, meeting the scope of the work, providing a system that meets code and quality standards, meeting the terms of the warranty without opening up a can of liability? How do you come to an agreement where the customer gets what they want and I don't expose myself to potential liability for the rest of my life.
` Once again, thanks for all the insight.
Sincerely,
Rob G.
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Answer:
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More than likely the "standard" contract form your subscriber is asking you to sign is an AIA contract or copy of that form. It's terms are exactly opposite to the terms in your "Standard" form contract - especially if you are using my Standard Commercial Fire All in One. The indemnity clause is just one glaring example.
Your analogy about insisting that a dentist sign your form, instead of his, is instructive. He won't do it and you shouldn't be signing your subscriber's form either.
Fire alarm systems present serious exposure to liability and damages and you should have the best contractual protection you can get before you do the work. The Fire All in One gives you that. You should insist on at least starting with that contract form and then making changes. Starting with the subscriber's contract form will never get you to where you need to be contractually.
What about the two forms? My office just litigated a battle of the two forms. Our motion for summary judgment was recently decided and you can read it here http://www.kirschenbaumesq.com/dw201070.pdf
If you do elect to sign the subscriber's contract form I recommend you have a provision drafted that would incorporate your standard form contract as the governing contract should there be any inconsistent terms.