KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com ****************************** comment on Exculpatory provision electronically signed enforce September 1, 2025 *********************** comment on Exculpatory provision electronically signed enforced in Idaho from article on July 15, 2025 *********************** Ken: I recently visited a doctor and they had a small LCD screen at the check in counter. They said “please sign it that you are agreeing to our HIPAA policy, if you would like to see a copy of it please let me know otherwise sign”. Then it was “please sign it that you are agreeing to our payment policy, if you would like to see …….” And this went on three or four more times. I asked them how I knew that what they were saying was matching what I was signing. For example they could say I was agreeing that today was Monday and signing but in fact I was agreeing to pay 10k.. They were stumped and agreed with me… I hope someone challenges that type of signature system because I don’t like it at all….The LCD screen didn’t even tell me what I was signing just a blank spot to sign and they were verbally telling me what I was agreeing to without even showing me the document. Yikes… Keep up the great work! Adam ************************ Response ************************ While K&K takes great care in the wording of the Standard Form Agreements certain provisions certainly require even greater skill in drafting and making sure they stay up to date. The Exculpatory Clause is an essential provision in the alarm contract, and though courts uniformly and consistently enforce the provision they do so with only great reluctance; in other words, only when the judge feels his hands are tied and he has to enforce it, having exhausted any legal reason to declare it unenforceable. I will say that the Exculpatory Clause enjoys greater popularity and it's found in many industry agreements, much more than perhaps 30 years ago, but you still have to be careful with it [and the other protective provisions]. It's very simply. The survival of your company, maybe your personal assets, can depend on the enforceability of the contract provisions. How much you want to risk is up to you, but I think it makes sense to use the most recognized and accepted contracts in the industry, the K&K Kirschenbaum Contracts TM. The Exculpatory Claus, like most of the other protective provisions, must be conspicuous in the contract. It must be readable. It must be unmistakable that both parties agreed to the provision. I have for long time recommended that when electronic contracts are used that the Click Through method be used rather than the Wrap Around method, which is what the doctor's office was using; the signature evidencing agreement is not on the document with the terms but on a separate standalone signature page. I believe cases have enforced Exculpatory Clauses even when the Wrap Around method was used; I still think it safer to use the Click Through method requiring the subscriber to initial or sign after every protective provision to establish that the specific provision was separately agreed to. The stakes are too high to relax execution of the agreement and it's just as easy to do it as I suggest. It's also just as easier, in fact much easier, to use the Kirschenbaum Contracts TM and to make sure you use them properly join the Concierge Program and use and enjoy its benefits. ************************ STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - 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. *********************** WEBINARS: https://www.kirschenbaumesq.com/page/alarm-webinars *********************** ALARM ARTICLES: You can always read our Articles on our website at www.kirschenbaumesq.com/page/alarm-articles updated daily ******************** Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth *********************** THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily ************************* PODCASTS: https://podcasts.apple.com/us/podcast/ken-kirschenbaum-presents/id1794851477 ************************* Getting on our email list / Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. ************************** 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 www.KirschenbaumEsq.com
