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what happens if you lose the original and all copies of signed contract - indemnity and exculpatory clauses / Invitation to present webinar March 1, 2017

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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what happens if you lose the original and all copies of signed contract - indemnity and exculpatory clauses / Invitation to present webinar March 1, 2017
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Don't miss todays webinar by alarm expert Jeff Zwirn. 12 noon EST
Title: All You Need To Know About Fire Alarm Systems and Taking Over Fire Alarm Systems
Presented by: Jeff Zwirn JeffZwirn@alarmexpert.com
Register here:   https://attendee.gotowebinar.com/register/4756737271107996417
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Note on Webinars. 
 Our All You Need To Know About webinar series has been well received and well attended.  Thanks to those who have presented and we're looking forward to the scheduled webinars.  If you would like to present a webinar please let me know asap so we can schedule.  Your topic?  Fill in the blank"  All you need to know about ______ [alarm industry issue of course].  
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what happens if you lose the original and all copies of signed contract - indemnity and exculpatory clauses
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    This should not come as a revelation to any of you.  What do you think your most important business asset is?  What is in fact the essence of your business?
    I'll answer the questions this way.  No  matter how long you have been in business; no matter how big your business has grown; no matter how many employees, computers, desks, trucks, websites, phone lines and IP addresses, when it comes time to sell your business and you've gone to contract and now you're heading to the closing, what do you think you think you'll be bringing with you in your briefcase?  Your contracts.  
    Most of you know this and we see many questions dealing with how contracts should be drafted, executed, copied and preserved.  My view is that the contracts have importance with varying degree of priority.  You may be thinking about papering your deal so you can be assured of getting paid.  While that is important, it pales in comparison with the protection the contract must give you if a claim is made.  A collection issue affects just one subscriber; a defense case can affect your entire business.  That's why the defense provisions, and the contracts as a whole, are the single most evaluated asset establishing the equity value of your business.
    So what happens when you lose the original and can't find a copy?  You get sued and you need that contract to protect yourself.  You may find some relief in knowing that when you use "standard" agreements" all hope may not be lost.
    In a recent case in Indiana an air charter company sued an engine lease company because an engine failed.  The case deals with a few issues of interest, but I am going to focus on the enforcement of the Indemnity provision and the fact that the defendant could not produce an original or signed copy of the contract.  Here is how the court handled the issue:
    "Enforceability of Indemnification Provision in General
    First, ACI points out that the original version of the Jet Access Agreement that was signed by the parties has been lost. The version of the agreement in the record is an unsigned copy of that agreement. ACI argues, therefore, that we should not even consider the above indemnification provision. Both Jet Access and Honaker, however, designated the affidavit of Shawn Honaker (founder and Chief Executive Officer of Jet Access) in support of their summary judgment motions; the affidavit states that the version of the Jet Access Agreement in the record is “a true, accurate, and complete, unsigned copy of the ... Agreement entered into between Jet Access and ACI.”   ACI designated no evidence whatsoever in its opposition to Honaker's summary judgment motion, nor does it make any serious argument that the unsigned version of this document varies in any way from the original. Under these circumstances, we can only conclude that the unsigned version of the Jet Access Agreement is a true and accurate copy of the original agreement. Consequently, the indemnification provision stands."

    The court permitted an unsigned copy into evidence because there was test testimony that the unsigned document was an exact copy, absent the signatures.
    Next the court dealt with the enforcement of the Indemnity clause and exculpatory clause.  The plaintiff alleged negligence [always the claim against the alarm company].  Here is how the court handled that: 
    "Next, ACI argues that the indemnification provision is unenforceable because “Kentucky agreements to indemnify against an indemnitee's own negligence are not valid.”  We disagree, as “Kentucky courts have long upheld exculpatory clauses in arm's length transactions between sophisticated parties with equal bargaining power and allowed such parties to bargain against liability for their own negligence ....”  The case cited by ACI in support of this contention does not apply here because it held an indemnity contract with an uneducated person void under public policy due to the person's inferior bargaining position. In the case before us, on the other hand, nothing in the record suggests that this transaction was anything other than an arm's length transaction between sophisticated commercial parties with equal bargaining power.
ACI also seems to suggest, without elaboration, that the indemnification provision is unenforceable under the standard announced in Hargis v. Baize, 168 S.W.3d 36, 47 (Ky. 2005). Under Hargis, an exculpatory clause is valid only if:
(1) it explicitly expresses an intention to exonerate by using the word “negligence;” or 
(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party's own conduct; or 
(3) protection against negligence is the only reasonable construction of the contract language; or 
(4) the hazard experienced was clearly within the contemplation of the provision.
    The indemnification provision in the Jet Access Agreement explicitly confirms an intent on the part of the signatories to be indemnified and held harmless for their own negligence; moreover, protection against negligence is the only reasonable construction of this contractual language. Consequently, Hargis does not prevent enforcement of the indemnification provision in the Jet Access Agreement."

    For all the lawyers out there here's the case: Aviation Consultants U.S., Inc., Appellant-Plaintiff, v. Timken Alcor Aerospace Technologies, Inc, et al
Court of Appeals of Indiana.February 24, 2017--- N.E.3d ----2017 WL 727777 
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WEBINARS:  Sign up for any or all of the webinars that interest you.

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FREE Webinar Series "All You Need To Know About" alarm industry issues. 
Register for one or all.  Each presentation scheduled for half hour to hour.  Not recorded.

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Title: All You Need To Know About Fire Alarm Systems and Taking Over Fire Alarm Systems
When: March 1, 2017 noon EST
Where: Your computer for power point, live video and call in on computer or phone
What will be covered: General discussion about issues to consider when installing, servicing or inspecting fire alarm and when taking over an existing system
Who should attend: Alarm company owners, general managers, sales managers, technician managers
Presented by: Jeff Zwirn JeffZwirn@alarmexpert.com
Register here:   https://attendee.gotowebinar.com/register/4756737271107996417
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Title: All You Need To Know About Standard Fire Protection All in One Agreement Covering Installation, Inspection, Service of Sprinkler System, Portable Extinguishers, Kitchen Hood, Smoke Detectors, Fire Pump
When: March 2, 2017 noon EST
Where: Your computer for power point, live video and call in on computer or phone
What will be covered: General discussion about the Standard Fire Protection All in One provisions including scope of work, liability limitations, insurance issues, indemnity issues, how to handle subscribers who won't sign or want you to sign their agreement. 
Who should attend: Alarm company owners, general managers, sales managers, sales staff
Presented by: Ken Kirschenbaum, Esq.
Register here:   https://attendee.gotowebinar.com/register/658147149875346945
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Title: All You Need To Know About Alarm Licensing and Contracts for DIY 
When: March 9, 2017 noon EST
Where: Your computer for power point, live video and call in on computer or phone
What will be covered: General discussion about licensing in the alarm industry for DYI. Different types of licenses, where you need them and how you get them. How and when to use License Holders or Qualifiers for your business and how to become a license holder for a company. Risks involved in not being licensed. Contract you will need for nationwide DIY monitoring agreements.
Who should attend: Alarm company owners, general managers, compliance managers and license holders.
Presented by: Ken Kirschenbaum, Esq.
Register here:   https://attendee.gotowebinar.com/register/2585168820901654273

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THE ALARM EXCHANGE

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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
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