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Question - Cancellation Notice
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Ken

    When attaching 2 cancellation notices to the contract, does that only apply to residential? Do we have to do the same for our commercial accounts?

Sal

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Answer

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    The cancellation notice, given in compliance of the 3 days cooling off statutes [applicable in all states] is for residential customers only.  There is no cancellation notice for commercial subscribers.  

    The Residential All in One comes with the cancellation language and notice required in your jurisdiction.       The Commercial All in One does not have cancellation notices.

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Question - sub changing contract terms

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Ken,

    My boss and I read your emails every morning, thank you for providing some black and white to this gray area industry.

    My question is of course, about contracts. More specifically- customers changing the term of the contracts without prior authorization from us. I recently had a customer completely cross out the monitoring term on our contract, then initial it. The email he attached the agreement to stated our “new terms” were month to month with a 30 day cancellation notice (unless there is negligence on our part, in which they are required to give no notice). I can’t imagine this being remotely legal, or okay. My boss seems to think that even though they crossed out the terms, they still initialed right next to it, therefore it remains valid.

    If it came down to it, what would stand up in court? Don’t both parties have to initial any changes for it to remain enforceable?

    Thank you for your help!

Mandy Dofflow, Project Manager

Nite Owl Alarm & Video, Inc.

North Hollywood, CA

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Answer

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    I am going to address your question and related issues.  You start with a printed form contract, hopeful the Standard Form Contracts.  Your subscriber wants to make a change to that contract.  Neither of you are required to initial the change.  If the change is made by crossing out a printed provision all that is important is that the original and all copies have the change.  Either or both of you can initial the change as well.  The essential issue is that the change be made before the contract is signed.  If changed after the contract is signed then both you and the subscriber would have to approve the change.  An initial and date would be acceptable.

    What about when you send a contract to your subscriber, for some reason signed by you - lot of companies do that - and the subscriber crosses out and add terms, signs and send the contract back.  What's the deal, the original printed form you sent over or the changed terms added by the subscriber without your consent?  

    If you get the new contract back with changes and you decide to go forward with your performance of the contract I would say that the contract with new terms governs, not the original you sent over.  If you get the contract back with changes you would have the right to let the subscriber know that the changes are not acceptable and your signature that was on the contract when you sent it over to the subscriber is now a nullity; there is no deal.  

    The above applies when you haven't done the work before the contract is fully signed.  If you're already done the work and all the changes are being made afterward, you're screwed.  That's another article.

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comments on the subscriber's indemnity clause from January 24, 2014 article

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Ken,  

    I concur with the comment about email length; by continually obliging the requester to maintain the ads indefinitely…they get ‘long-in-da-tooth’.  Thanks for relocating it.

    Totally agree with your comment in the January 24 article.  As I read the proposed change, it did sound ‘reasonable’ from the perspective of getting a Potential to acquiesce.  And as I read on, I feared that you would comment, effectively, that “…certain contractors have come up with various language that works good enough for them.”, or to that effect.

    Not only would that position serve to further confuse the rest of us who wish to support your efforts, it would erode the trust we place in your contract research as the most effective protection we can expect.

    I also appreciate the constant battle you wage to educate, and it must be maddening, the base as to the why’s and how’s of your Standards. I have learned during my process of placing your contract in my S.O.P. the challenges of defending with the client.  Success, and a fluid process to gaining the signature without resentments, is dependent on the Devil in the Details of the presentation.  This requires us as professionals to do our homework, read the contracts many, many, many times, and re-read it again every time we are about to present to a new client.  This should be done not as a means to become a lawyer, but instead to refresh our mind on how NOT to place ourselves in the way of talking like the lawyer.

    The more times I do this, the briefer my presentation becomes.  Succinct.

1)        It is presented AS IS drafted by Kirchenbaum with exception only to pricing.

2)        Acquiescing to the client on even a single word is not going to make them happy, it only begins a long slippery slope that usually, still, does not end in satisfaction.

3)        When and if pressed, I am prepared to say that we are a Servicing and Installing Company, not an Insurance Company.  Ultimately, yes, as they point out the contract overwhelmingly protects the contractor.  We, as a Company, cannot open ourselves up to the risk of losing in litigation, or we will likely not be in business very long.  I point out to them (as they are feeling the pressure on them to sign..) they are welcome to take their time, ask all they questions they need to about the nature of my installing methods and business practices for service after the sale. 

4)        And one thing I see mentioned rarely in conjunction with Kirschenbaum debates about the contract, USE THE 3 DAY RIGHT TO RESCIND!, and point out to the client the protective measures that this legal document affords them.

5)        And lastly, most importantly, I express early on as we are preparing to install - contingent upon the signature, that “Make no mistake, without a signature to this contract in its present form, we will not be continuing business today.” And that usually sends the message loud and clear that I am serious, and I think also tells them that the debate – is- OVER.

Peter Mason

Mason Alarms & Electrical, LLC

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Ken

    Put another way…”I can get a hell of a good look at a T-Bone steak by sticking my head up a bull's butt, but I'd rather take the butcher's word for it.” – from the 1995 movie Tommy Boy Directed by Peter Segal. Written by Bonnie Turner and Terry Turner.

Thanks,

Kyle

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Ken

    Removing the exchange is great. I used to share this with my employees by simply forwarding the entire email. I had to quit because I felt like I was trying to get them another job.  I would cut and paste but this is a big time saver. We are about to purchase the residential all in one. We bought the fire all in one last year.

Thanks for your help!

anon

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