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objection to hold harmless / license issues when expanding August 18, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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objection to hold harmless / license issues when expanding
August 18, 2017
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objection to hold harmless
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Ken,
    We have a potential customer who has objected to the Hold Harmless provision of your Standard Residential All in One Agreement.  His point is that we are already protected by the Limitation of Liability and he doesn't want to be responsible for any negligence on the part of our company.  How should we respond to this potential customer?
    Thanks for providing this valuable forum.
Jim Wooster
Alarm Financial Services, Inc.
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Response
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    It's common for subscribers to challenge the Indemnity provision [you refer to it as the Hold Harmless provision].  That provisions is one of the "protective" provisions in the Standard Form All in One Agreements and your subscriber is correct that you are otherwise protected by other provisions, such as the Limitation of Liability provision.   But the Limitation of Liability provision, as well as other protective provisions, will protect you from claims from your subscriber, who, presumably, has signed the contract.  There is potential for claims from third parties who have not signed the contract.  These third parties may be "intended beneficiaries", such as known tenants, or truly third parties, such as adjoining property owners.  While your exposure to these third parties may be limited or non-existent, that doesn't mean you won't get sued if they suffer a loss.  The Indemnity provision would require the subscriber to defend and pay any claim by these non-contracting parties.  
    Though you don't really want to give up any contractual protection, the Indemnity provision is one of the first that you can agree to modify or omit from the contract.  If you carry proper alarm industry E&O policy then it's your carrier who will be looking for the Indemnity provision.  You will be covered by your carrier and you may even be covered by the subscriber's carrier if the subscriber has obtained the insurance required by the Insurance Procurement clause.
    Other than saying that you don't modify your contract or that your insurance carrier requires the contract you may have hard time convincing some subscribers that all provisions, particularly the Indemnity Provision, has to stay in the contract.
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license issues when expanding
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Ken
    My client currently provides the above services in Florida, but is looking to expand into other states.  Can your firm advise re the state/local regulatory requirements for the alarm client to expand into GA, NC, and SC (and possibly other states)?  Our client will handle the actual filings, but it is looking for guidance to ensure it fulfills all necessary requirements.
Best regards,
Laurie
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Response
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    Expanding from one jurisdiction to another certainly requires checking license requirements and will also entail new contracts for the new jurisdictions, especially if the customer base is residential.
You can check license requirements on our website at https://www.kirschenbaumesq.com/page/alarm-law-issues
    You can also engage our Alarm License department to assist with the license process.  Your client may have personnel who can get the license or may want to utilize a qualifier for the company on a temporary or more or less permanent basis.  We can assist.  Contact Michael Foster,Esq at MFoster@KirschenbaumEsq.com 516 747 6700 x 308 or our Contract Administrator Eileen Wagda at EWagda@KirschenbaumEsq.com or 516 747 6700 x 312.
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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