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town fire dept in default / non-solicitation provision / comment on competitor using your name April 18, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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town fire dept in default / non-solicitation provision / comment on competitor using your name
April 18, 2018
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town fire dept in default

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Ken
    We do test and inspection for a fire alarm systems.   For town fire station we did the inspection in January and they still have not paid their bill and they have not paid yearly monitoring charge that was due in February.  What should we due. They signed a 5 five contract.  We have your 
Fire All in One contract.
Thanks
Brian 
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Response
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    Notifying the AHJ would be awkward since the subscriber is the "town" and the AHJ works for the same government.  Probably different departments.  There are two ways to handle this.
1.   Send notice advising that if payment is not made in 7 days you will be terminating services. If they don't pay within the 7 days, send Notice of Termination, setting the exact date and time service will terminate.  Send both notices to the AHJ
2.   Alternatively, send no notice at all.  Send subscriber an invoice for the balance of the contract and everything else they owe you.  At same time send the Contract, the invoice and any other papers you have regarding the account to my office, 
Collection Department, Att: Kathleen Lampert [KLampert@Kirschenbaumesq.com - contact Kathleen for our Commence Litigation Package with instructions; call her at 516 747 6700 x 319].  We will commence arbitration proceedings against the subscriber.  Trust me, that will get their attention, and very likely to get you paid [and our legal fees paid too - by the subscriber if all goes according to plan]. 
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non-solicitation provision
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Ken
    We use your 
All in One and it has a non-solicitation provision:  our subscriber is prohibited from hiring our employees.  We have subscriber who wants to make exceptions, such as when employee answers a general ad.  Do you think we should accept this modification?
Steve
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Response
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    How onerous can this provision be?  If you send an employee out to work at the subscriber's premises the subscriber cannot hire that employee without compensating you.  The issue doesn't come up that often, but it does come up and it can cause more than a few nights lost sleep.  Why?  Because the employee is likely someone who is valuable to you, perhaps someone you trained or at least found and gave a "home".  The subscriber is most likely a "larger" operation since they are now looking to hire your employee to do the work you are contracted to perform; an in-house alarm, or other, tech.  Could be your top sales person; could even be your office manager or collection staff who communicated directly with the subscriber and made a favorable impression.  
    The 
Standard From Agreements provide for sufficient compensation in the event a subscriber hires your employee.  Why should there by any exceptions?  The coincidence that your employee and your subscriber just happened to connect is possible, but even so, why shouldn't the restriction apply?  It's not like your contract prohibits your subscriber from setting up an in-house security team, just not with your employees.
    If it's a deal breaker I'd let it go.  But I think the provision is reasonable, and it's rarely challenged.
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comment on competitor using your name
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Ken, 
    regarding "Frustrated" reporting in your April 9, 2018 article that someone is using his name;
    Ran across the same situation when someone began using my name after the dba expired.  Sounds complicated but it really is not.  When it happened, I considered my 10 years of being in biz along with the good 
name and excellent reputation that I built over that time in jeopardy, so much so that it would affected the sale price when it was time to exit.  My decision was to contact a trademark attorney.
    "Frustrated" needs to at the very least consult with such a professional as it is something that can be stopped.  Yes, it can be expensive but when considering the cost of your long-standing reputation name along with the cost of a total re branding, it's pennies in the big picture.
    Anonymous due to settlement
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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