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Emergency calls and liability / contract assignability and new contracts / contract changes and forms July 20, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Emergency calls and liability / contract assignability and new contracts / contract changes and forms
July 20,  2017
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Emergency calls and liability
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Ken:
    I have been reading your newsletters daily and find them to be very interesting, informative and thought provoking.
    With liability such an important issue to contend with these days, I was wondering about situations that I handled years ago in the past with no repercussions that could very well appear in the present with a much different outcome. Here is the scenario I am wondering about. 
    A fire alarm company receives a call after hours for an emergency repair to a fire alarm system. The caller is not under contract and not a regular customer and is calling because the company they have been dealing with for fire alarm service hasn't responded to their emergency yet. They claim they have been trying to get hold of their alarm company for several hours with no success, and the fire official is going to close them down if they don't get the problem with their alarm system fixed right away. 
    Sounds like a great opportunity to pick up a new customer by providing them with the service they need. But is it really? Suppose I sent a technician to the site, the technician fixes the problem, and a few days later, something else goes wrong with the alarm system and this time a catastrophic loss is incurred by the owner. Sounds like the makings of a lawsuit, with me being hauled into court and being blamed for the system failure since my technician was the last person to work on the system. 
    Is there some type of waiver of liability that must be signed (a Kirschenbaum form, of course!) prior to our technicians making repairs for non-customers for this type of scenario? Or, should we just walk away from this type of situation due to the potential liability risk? I appreciate whatever advice you might have.
Thomas Mockoviak, Senior Engineering Technician
Fyr-Fyter Sales & Service, Inc.
Pennington, NJ
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Response
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    You should not provide any alarm services without a properly written contract.  That includes emergency fire alarm repair service for another alarm company's subscriber.  Once your company thumb print is on that system you are a potential defendant in a lawsuit if that alarm system's effectiveness is questioned.  And it doesn't have to be a fire or water loss.  The other company can now blame you for any damage the system has and the cost of repairing that system.  Sure you can beat the claim but is the revenue from the service call together with the prospect of getting the subscriber worth the risk?  It's not.  
    Before doing the emergency service call require the subscriber to sign your Fire All in One.  Even if it's for  Repair Service only on a Per Call basis.  Then you will be protected.  
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contract assignability and new contracts
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Ken,
    We are looking to acquire the assets of a small local firm.  As I read his contracts (clearly not one you wrote) he does not have any language that allows him to assign his contracted subscribers to us.  What is the impact of this?  Can we assume his accounts?  Do we need to get new contracts with each subscriber?
Thanks,
Anon  
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Response
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    First we address assignability.  Contrary to what you've been lead to believe by all the brilliant attorneys and those who have acquired their legal knowledge on the Internet, alarm contracts are fully assignable unless the contract specifically states that it is not assignable.  Why do I bother putting in an assignment clause in the Standard Form Agreements?  So the yoyos out there won't ask about it.  So you can buy the contract and they are assignable to your company.
    You ask what the impact is if you buy the contracts?  Well when you go to sell the contracts a buyer may think the contracts are not assignable and not buy them, and that's after getting sound legal advice.  What can I say?  
    Finally, should you get new contracts signed?  Yes, and they should be the Standard Form Agreements [with the assignment clause] because then you will have the most updated agreement worth the most money.  You will increase the equity of your business by changing over to the Standard Form Agreements.  It will be worth the effort.  Figure increase of 5 to 10 times RMR because you took the trouble to get the Standard Form Agreements signed.
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contract changes and forms from June 21, 2017 article
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Ken
    Regarding changes to service or price changes, if the contract is newly signed or in initial term, we use an addendum that was designed for this purpose that changes the services and/or the pricing. This is something a tech can use if he arrives on site to discover missing phone lines or VoIP, which was the main reason for the addendum.  It could also be used to add components (extra smokes, PIRs, etc.) or services (remote control, open/close reporting). 
    Outside of initial term, we prefer to have salesman get new agreement.  
    For residential, we also get a new 3 day notice of cancellation.
RD
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Response
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    We provide a Supplemental Agreement with the All in One Agreements which can be used for contract changes or additions.  I would use the form during installation or during the term of the agreement.  
    You can also get a new All in One signed if you are selling and installing additional equipment or providing additional services.  It all starts with the All in One and we provide the other forms you need for changes.  You don't need to re-invent this wheel.
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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
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