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getting signature or initial for specific provisions in the contract November 10, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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getting signature or initial for specific provisions in the contract
November 10, 2017
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getting signature or initial for specific provisions in the contract
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Ken,
   I received your updated Residential All-In-One contract. I noticed quite a few more clauses where the customer has to initial. My question is, if the customer does not initial those clauses but still signs the contract are those clauses and the contract still enforceable?
Thank You,
Jim 
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Response
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    Good question.  The latest updated contracts do provide for certain provisions to be specifically initialed by the subscriber.  Whether the provision will be enforced if not specifically initialed or signed may depend on your jurisdiction.  Some states require the additional signature [by initial], so in those states the provision's enforcement may very well depend on that additional signature immediately after the provision.  
    Other states may not specify that a separate signature is required, but pretty much all jurisdictions require that these provisions be conspicuous, and what that means can be murky, not clear.  Conspicuous can mean different font by color or size or placement of the provision.  I believe that getting the additional signature would meet the criteria for conspicuous.  
    Keep in mind that these provision that we are suggesting have a separate signature are perhaps the most vital.  Certainly if you are hoping to rely on one of these provisions you are likely involved in a lawsuit or claim where the damages could very well exceed your insurance coverage.  In other words, while every provision in the contract is important and you have need to rely on such provision from time to time, the ones that we believe should have separate signatures are the ones that will make the difference when you really need to, when your company is at risk.  
    The question comes from an alarm company in New York, so a quick answer could have been that you don't need the extra signature because NY doesn't require it.  But we feel that NJ does require it and so do many other states, so we include it in our Standard Form Agreements.  The additional signature certainly won't hurt.
    But this bring to mind another question, and I don't really have an answer.  What if the agreement calls for a separate signature [or initial] and though the contract is signed, the additional signatures are not signed?      Does that mean the subscriber could later claim that the provision wasn't approved because it was not signed, or that the provision was not conspicuous, so the subscriber missed it.  These would be good arguments.  If the state required the signature then enforcing the provision would be difficult [to say the least].  If the additional signature is voluntary then it may depend on whether the provision was indeed conspicuous.
    Since my crystal ball isn't working, why take the chance.  Get the contract signed as it's designed.  I designed it for a reason, and it wasn't to make things harder for you.
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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