KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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how to change number years of contract / collecting on contract when subscriber denies signing
November 10, 2018
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how to change number years of contract
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Ken
I have an existing customer that I just sent an invoice to for their yearly monitoring service renewal. I also sent them a Residential All in One contract to sign as they were installed prior to us using the new agreements. The client read over the agreement and would prefer to not agree to the 5 year term. She is Ok with a 3 year term (which I am mostly OK with). How do you suggest we handle this?
name withheld
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Response
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The term of years in the Residential All in One is 5 years and 10 years in the Commercial All in One and the Commercial Fire All in One. That is in the printed form when we prepare and send it to you. Some clients prefer to keep the number of years blank and then fill it in for each subscriber.
That's a mistake. It will invite discussion and negotiation every time. Can you imagine if I provided you with a form agreement with only the heading for each paragraph and suggested that you and the subscriber negotiate the terms of each paragraph. I know, the concept is silly. But the number of years the agreement will run, and possibly terms of automatic renewal, is a fairly easy concept to understand, though in all fairness, what's easy to understand is the years, not necessarily the justification for those years. For example, a subscriber may not appreciate that you are losing money on an installation and need the years to recoup your investment and profit in the job. The subscriber may also not care, and honestly, you shouldn't be in the position of explaining why you require the years you call for in the contract. Does Hertz explain to you why it charges what it does by the day or week?
Most subscribers will sign the contract in its printed form without challenging the provisions. You know your sales approach and talent is correct when that's the case more often than not. If you are regularly being challenged to discuss and justify the contract provisions then perhaps you need to look at your sales techniques. Of course this analysis doesn't apply across the board. Most alarm companies can anticipate their customer's reaction to the contracts. If you're trying to sell home alarms at a lawyer convention get ready to rumble. If you have institutional customers or government customers you will need to be ready to discuss the contract terms and make accommodations. That's why you should have my phone number on speed dial, for assistance.
So how can you make those changes to the contracts? The term of years is the easiest. You make the change by hand. You cross out the 5 and put in a 3. Make sure it's changed on all copies. If the change is made after the contract has been signed then make sure you get the change initialed by the subscriber, and again, make sure all copies of the contract conform to the original.
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collecting on contract when subscriber denies signing
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K&K's collection department starts a lot of collection cases and proceedings every month. After over 40 years of representing the alarm industry, starting with collection matters, we've heard just about every defense that subscribers can imagine. One of the less imaginative is that they didn't sign the contract. Well, somebody did. And somebody allowed the equipment to be installed and the services to be provided. Sometimes the subscriber has even made payment for many months or years. But not because there was a contract, at least that's what they claim.
The best way to overcome this boloney defense is to have the alarm salesman testify that he saw the subscriber sign the contract. But that's not always the case and often the salesman is not available to testify. Perhaps he's moved on, passed on, or just too unreliable to depend on. There are other ways to establish the authenticity of the subscriber's signature, just not as easy. For example, asking the subscriber to confirm that it's his or her signature on the contract often gets a positive answer, despite the squirming of the defense attorney. Pointing out all the work done pursuant to the contract is another way to convince the judge that the contract was indeed signed. Even if not signed by an authorized party [which is actually a different defense] the subscriber can be held to the contract if you can establish ratification or assumption of the contract.
One of the benefits or advantages of arbitration is that witnesses can testify by telephone or video. That saves a lot of time and overcomes a lot of resistance when a salesman is working on commission and doesn't want to spend a day in court just to spend 5 minutes on the stand to testify "yep, I was there and I saw him sign the contract".
You can use K&K's collection department only if you have our Standard Form Agreements, another great reason to get them.
How about snapping a picture of your subscriber holding up a signed copy of the contract with a big smile on his face like he just won Publishers Clearing House's lifetime prize?
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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