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when does RMR start / should we change the exculpatory clause / TN cancellation rights January 19, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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when does RMR start / should we change the exculpatory clause / TN cancellation rights
January 19, 2018
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when does RMR start
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Ken,
    We have your Commercial All-in-One contract. We provide security install/monitoring and analytic video install/monitoring. We have a particular client that we have installed the monitored analytic video system. The installation is complete; however, we are waiting on the subscriber to provide us with the contact list, verbal passcode, and networking to be completed so that the monitoring station can view the cameras and monitor alarm signals. At this point, we haven't started billing for the monitoring because it is not active yet, but it has been several months since the completion of the install. We have been regularly following up with the subscriber since then, at least once a week, but the subscriber is saying the delay is caused by the ISP and to stop bugging them weekly about it. We are ready to start charging them the RMR based on the agreement but wanted to get your feedback on it.
Megan
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Response
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    The answer is in the Standard Form Agreement.  The RMR starts on the first day of the month next succeeding the signing of the contract.  Not when the alarm is installed; not when the alarm is activated; not after the first test signal; not after the subscriber approves the system.  Unless you changed the printed form, that's when the RMR billing starts.
    This change was made in the Standard Form Agreements long time ago in response to defenses in collection cases that claimed that the alarm system was not activated.  Sure enough the contract called for commencement upon activation.  In many collection cases the alarm was never activated for one reason or another, but always the fault of the subscriber, not the alarm company.  Then the case turned on the issue of whose fault it was that the alarm wasn't activated, and that had to be dealt with before there was any discussion of whether the RMR charges were due.  So I changed the contract.  I don't know if others have copied the provision and followed, but that is how the Standard Form Agreements deal with commencement date.
    Of course you are free to modify that provision, and you should, if the installation is to be delayed.
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should we change the exculpatory clause from January 15, 2018 article
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Ken
    Good luck inserting that.  First, I think this will end up being an aberrational decision because it just doesn’t make any sense.  Second, the exculpatory/limit of liability provisions in our industry contracts, while legal and justifiable, already push the limits.  I think adding this to the mix could possibly tilt the whole thing over to where some judge might throw it all out. 
    So, I would not push the envelope because when the issue does come up (which I have found to be rare) I don’t believe doing so will do the trick.  Bottom line, while I think it would probably have no realistic impact at all, if it did the risk of a negative blow back would outweigh any potential benefit.
Robert Kleinman, Esq
AFA Protective Systems, Inc.
Syosset, NY 
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Response
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    Bob, I agree with you.  The exculpatory clause is already a bitter pill the subscribers and judges have to swallow.  Providing that it also applies to claims for fraudulent inducement of the contract may backfire.  If you use the Standard Form Agreements [which you don't, by the way] you have enough protection in the contract as written.  No point rocking the boat.  Though, we could be wrong.  Even a broken clock is right twice a day.
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TN cancellation rights from January 13, 2018
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Ken
  Is this new law permitting cancellation of alarm contracts retroactive on all contracts or for contracts signed after the Law took effect, which is January 1, 2018?
Bart A. Didden, President 
U.S.A. Central Station Alarm Corp. 
Port Chester, NY 
Milford, CT 
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Response
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    The law applies to alarm contracts signed after January 1, 2018 and those contract signed before then that come up for renewal.  The new law would apply to the renewal term.  
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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