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ISC schedule / who does cs notify on failed test signals / another creative subscriber - push back April 7, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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ISC schedule / who does cs notify on failed test signals / another creative subscriber - push back
April 7, 2018
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ISC schedule:  please stop by to say hello.  For private meeting at ISC please call Stacy Spector, Esq at 516 747 6700 x 204.  
April 11:   Affiliated Monitoring Suite   1 -2 PM 
                 Rapid Response Monitoring booth  2 -4 PM
                 
April 12:  Stages luncheon 11 AM.  For central stations only
                COPS Monitoring booth:  1 - 2 PM
                All American Monitoring booth:  2 - 3 PM
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who does cs notify on failed test signals
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Ken
    Please allow me to thank you for your very educational articles.  I have learned a lot from them.  I have also been privileged to attend one of your classes.  I do have a question that hopefully you will be able to answer for me.
    I manage a third party wholesale central station.   When a system fails to test we contact the end user and in most cases the dealer as well.  However, after a period of time and the system is still failing to test - it’s time to contact the AHJ. 
    My question is – do I notify the dealer and he notifies the AHJ or do I notify the AHJ directly?
Thank you,
name withheld
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Response
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    Good question.  Failure to document and respond to failed test signals is often a central issue in a defense case.  
    The first matter to address is the cs response to a failed test signal.  The response may be different for fire or intrusion, and also different for environmental or other equipment monitoring.  For fire I believe the cs has an hour to notify the subscriber that there is a failed test signal.  I do not believe notice to the dealer is a substitute for notifying the subscriber.  The time for notice for an intrusion system may be more than one hour and I am not sure about other systems.  What's important is that you know the time requirements and comply,
    The cs policy on failed test signals should address repeated failed test signals.  A cs shouldn't have to send a notice out every day for weeks or months.  Also, why would a cs continue to monitor a system when the only activity is a failed test signal and neither the subscriber or dealer has managed to restore the operation of the system and the test signals.  
    The cs should consider discontinuing the monitoring service after notice to the subscriber and dealer.  Unless required by the local AHJ I would not suggest the cs notify the AHJ; that is something the dealer can do.  If however the cs has issued any documentation to the AHJ that it is monitoring the system then the cs should notify the AHJ that services have terminated.
    Another issue that should be mentioned is the actual notice to the subscriber and dealer.  Believe it or not we have situations where the cs doesn't have proper contact information for either.  The cs needs to take immediate action to ascertain the contact information or terminate the account, which can present its own problems if the dealer is non-responsive.  A cs should not take the position that as long as it is getting paid it should continue to offer the services, even if those services are no longer useful because the communication pathway is no longer [or never was] working.
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another creative subscriber - push back
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Ken
    We use 
your contract – and for the most part we don’t get much, if any push back.  I currently have a Florida attorney reviewing our contract and she has come back with the following addition she would like to insert:
   
 "Notwithstanding anything to the contrary, nothing in this Agreement shall exclude or limit either party’s liability for (a) death or personal injury caused by its negligence, (b) fraud, fraudulent misrepresentation or willful misconduct, (c) any other liability that cannot be limited or excluded by law."
    She states that this is the law anyway, that there can be no limitation of liability, so why not include it in the contract.
    Just so we’re on the same page – this is a $300 annual engagement – I am not accepting her change.  But….  is she correct in stating that there cannot be language limiting the liability in those examples??  And then I guess, if that’s true – is that new???
    Thanks in advance -
    Best Regards,
Karl 
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Response
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    The requested change is not an accurate state of the law and should not be accepted.
    A properly worded limitation of liability provision should be enforced except for willful misconduct intended to injure another or gross negligence, which is generally defined as willful and reckless conduct.  Some states have different definitions which I think only add to the confusion in the alarm industry, such as "absence of even slight care".  The type of injury, property damage or personal injury, should not affect the enforcement of the provision, especially when the claim is that the system didn't work, rather than actually caused the damage [which would rarely be the case].  Fraud would also cause the contract not to be enforced.  
    The best way to respond to the requested changes would be to say it's not necessary or even appropriate to put a provision in a contract that states that "if prohibited by law this or that provision won't apply."  If that's the law then you don't need the provision.
    Go to the car rental counter at the airport and read the contract for rental; all of it.  Demand changes that suit you and when the clerk looks at you like you're crazy, let them know you'll take your business elsewhere where they are more accommodating.  Then go repeat the process act each counter, right down the line.  You'll find the same provisions in all the contracts and you'll also find out that the clerks won't change one letter, let alone one word.  Collusion?  Can you claim you signed under duress?  Nope.  Don't like it, take the bus.
    The alarm industry needs to hold fast to its contract protection.  Allow it to be whittled away and it will be gone forever, and so will your cheap monitoring and insurance premiums, because the cost of potential and real liability will have to be calculated in as part of "doing business".  This happens to be exactly why the law in all states is to permit limiting liability, so that alarm services can continue to be provided for reasonable and affordable charges.
    If you don't have the 
Standard Form Agreements then I can't help negotiate your changes or your contract.
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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