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ALARM CO HELPING SUB GET OUT OF CONTRACT WITH ANOTHER ALARM CO / PURSUING COLLECTION AND LITIGATION
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Ken,
I have a customer who wants to terminate their contract with another company and wanted advice on how to get out without any penalties. They had a motion installed in an office and not but a foot away, someone tried to bust through the window and it wasn’t triggered. It turns out the battery wasn’t installed properly leaving the device offline. The burglars didn’t make it in the building but the customer is upset that they found the battery to the motion right near the window not properly installed. They also are having a few other issues and the company didn’t seem to want to either address or can’t fix the issues on the system. They want to switch to our company for their monitoring but they need to get out of their other contract before we can take them on as a client since I do not want them to have to pay multiple monitoring fees a month. Any advice?
Thanks,
Mike
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RESPONSE
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I get these issues from time to time. My initial response is that I don't assist subscribers to get out of their alarm contracts. In fact my office sues hundreds of subscribers each month who try to. So let me take this question in a different direction and hopefully cover the same issues.
Letting me know that the subscriber has a contract is obviously not enough information. Let's hope for the alarm company that they are using the Standard Commercial All in One. [if not I hope they lose the account]. Let's also accept your facts that the battery for the motion detector wasn't installed properly and the motion wasn't working; there was attempted break in.
The Commercial All in One requires the subscriber to test the alarm system and let the alarm company know if service is required. If Repair Service is something the subscriber has signed up for, and pays for, then the alarm company has to make the repair, provided it's caused by ordinary wear and tear, or in this case, improper installation.
But what if the alarm company really has breached the Commercial All in One? What if the alarm company's performance of the agreement is so wrong that the installation wasn't proper, no testing was performed, no central station confirmation was obtained, repair service is refused. If the alarm company is in breach of the Agreement then the subscriber has every right to terminate the contract. The principle of law is that a party who is in breach cannot enforce the contract; a party who is not in breach can terminate if the other party is in breach.
However, what constitutes a breach of the agreement is the issue. Agreements often have cure provisions, notice provisions, remedy provisions. These provisions need to be considered before jumping to conclusion that the subscriber can terminate the agreement. The Commercial All in One has several provisions which the subscriber would have to comply with before it successfully terminated the agreement.
If the alarm company is as remiss as you describe then perhaps it doesn't care about this account. Otherwise, it might want to refer it to my office for "collection". If you use our All in One Agreements we will support you for collection, litigation and other subscriber issues. Contact our collection department by contacting Jesse Kirschenbaum,Esq at 516 747 6700 x 317 or Jesse@KirschenbaumEsq.com or Gene Rosen,Esq at 516 747 6700 x 303 or GRosen@KirschenbaumEsq.com
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