Changes to exculpatory and subcontracting provisions March 13, 2019

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Changes to exculpatory and subcontracting provisions
March 13, 2019
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Notice:  I'll be at ISC West in April.  Call our Concierge Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304 to arrange a private meeting and consultation.  Meetings and consults will be No Charge during the ISC show.
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Changes to exculpatory and subcontracting provisions
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Ken
          We have a potential client who wants to amend the language in section 22. They want it to say that we is not held liable UNLESS it is our negligence. They also want to completely remove section 26. 
          Thoughts on that? 
Respectfully,
Megan
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Response
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          You are referring to the Residential All in One.  Unless this customer is “high end” it’s not likely that it’s worth spending too much time on negotiating.  Lucky I don’t charge for most “quick questions” like these, though you really need to sign up for our Concierge Program so you have greater access and “house counsel” at your beck and call.  So unless this is a high end customer, the answer to the modification request starts and ends with, “no”.  But, assuming you want to make some effort to retain the customer, here’s the long winded response [that still ends up with “no”].
          Paragraph 22 is the Exculpatory clause.  Basically it says you are not liable for any damages even if caused by your negligence.  Obviously changing the word “even” to “unless” completely reverses the meaning and intent of the provision.  In essence, changing it to “unless” is like taking it out, since you would be liable for negligence.  
          The whole point of this provision and many others in the All in One is to convey the message that you are not an insurer and that you are not going to be responsible for any loss or damage in the event the alarm system or alarm services do not work.  The contract provisions make this as clear as a glass of water. 
          Actually there are two ways to deal with subscriber.  Just say “no”, or go him one better, take out the paragraph altogether.  You can’t make the change he wants, but you can take out the paragraph because there are many other paragraphs that protect you that have not been objected to.  Making the change however would add ambiguity to the contract because there would be a provision that stated you will be liable if negligent.  
          Paragraph 26 permits you to engage subcontractors and states that they are protected by the contract terms; also that you won’t be liable for their negligence.  The only way you can omit this paragraph is if you do not engage subcontractors.    Since most alarm companies subcontract the monitoring to a wholesale monitoring company, that’s at least one subcontractor.  Keep in mind that your subcontractors, such as your monitoring center, is going to rely on your contract with the subscriber unless it requires you to get a contract between subscriber and monitoring center signed.  Most of you don’t want to get a Three Party Contract signed, and the only way you’re going to avoid it is if the monitoring center is satisfied with the contract you have with the subscriber.  The Kirschenbaum TM contracts are recognized and accepted by most monitoring centers.  If your monitoring center doesn’t accept the Kirschenbaum TM contract then get a different monitoring center; start looking today in The Alarm Exchange under central station category.  Not willing to accept the Kirschenbaum TM contract is only the first issue you’ll have with this monitoring center.  Best to part ways now before more nasty issues arise.
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You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
I am looking forward to meeting all Concierge Clients in Las Vegas at ISC West in April.  Please make arrangements with Stacy Spector,Esq. 
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NOTICE:  You can always read our Articles on our website at ww.kirschenbaumesq.com/page/alarm-articles
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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