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reconciling your contract and subscriber requirements and terms February 20, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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reconciling your contract and subscriber requirements and terms
February 20, 2018
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reconciling your contract and subscriber requirements and terms 
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Ken
    Two questions on how we should manage the Commercial Fire all in One.
1)   Customer is simply buying a system from us. Service is handled under a separate service agreement, no monitoring.  What is the “Term of Agreement”?   Under this scenario (install only) they won’t want to sign for 5 years.
2)   When using this contract for a service agreement how do we incorporate customers’ requirements? For example customer requires us to have insurance and has its own insurance procurement clause. This is in the event our workers are hurt while working on their site (NY Ladder Law  protection). Other common requests in customer contracts that need to be incorporated: NDA, Non-solicitation of customers employees, we are an independent contractor,  drug testing of our employees to work in their facility, safety requirements, import/export compliance, anti-corruption, publicity clauses, etc. Customers require these items that are not in conflict with the protections of the Commercial All in One. How do we get them incorporated? By addendum?
MT
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Response
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    Lot of issues crammed into those two questions.  
    A sale and installation agreement does not need to have a "term".  The Service Agreement does need a term.  If you are signing the subscriber up for a service plan with RMR, or a per call arrangement, you still need a term.  If you are on per call you can provide that the contract will run indefinitely until terminated by either party.  But the point to remember, no alarm work - and that's installation, monitoring, inspection or repair service, without a proper contract to protect you.
    How do you incorporate the customer's requirements in your contract?  Very carefully.  
    Many of the customer requirements may not contradict the terms of your Standard Form Agreement.  Others may.  For example.  You agreeing to carry specific insurance is not covered in your Agreement.  You agreeing to a Non Disclosure Agreement and a non-solicitation agreement is not something that's in your Agreement.  To the extent that the subscriber's required terms contradict terms in your Agreement, your Agreement needs to supersede and govern.  And your Agreement states that it does, which is a better starting point than stating that it doesn't or if it's silent on the issue.  
    Most of the time the subscriber's form agreement is something that is put together to be presented to any vendor or contractor with whom the subscriber is doing business.  Obviously not all trades or vendors have the same issues or exposure as those companies providing security, fire and life safety services.  The alarm industry's use of contracts is well established and generally accepted, and it's something you shouldn't give up lightly.  I can't tell you in advance what contractual changes are acceptable in all situations.  That is something that you  may have to call me with each time you are confronted with contract changes.  After a while you may get a feel for what you can do and what you shouldn't do.  But a provision that I won't change in one situation may get changed in another situation, and I am just referring to a situation where the job is so desirable that you will accept anything and any terms to get the job.  
    In every situation you have to access the risks and how the contract modifications change the risks.  In all situations try and get your contract signed or incorporated by reference to the subscriber's form agreement.  If you have our updated Standard Form Agreements it addresses contradictions.  Be sure your contracts are updated forms.
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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