Question:
Ken:
I have a question that could be the topic of one of your email round tables.
If an alarm company has an existing subscriber under contract and that contract is about to expire or has expired, can the alarm company send the subscriber a new contract to sign. Can it be done by mail and if it is by mail does the renewal contract need to contain the 3 day right to cancel. A
Also if the renewal contract has the 3 day right to cancel and the subscriber mails back the contract does the clause apply and if so when does the clock start on the 3 days, is it from the day of signing , day of mailing or the day of receipt by the alarm company.
Can the alarm company refuse to honor the 3 day clause because of the renewal or because it was done by mail and not by a visit to the subscribers home.
Eric
Answer:
The statute appears to exclude sales through the mail. I have previously advised that you should not refer to a contract as a renewal contract. The connotation for a renewal contract is that there is no addtional consideration. Either comply with the automatic renewal notice requirement or get your subscriber to sign a new contract. The New York law is below and please note the exception for the Personal Emergency Response alarms.
McKinney's Personal Property Law § 426
§ 426. Definitions
In this article:
1. "Door-to-door sale" shall mean a sale, lease or rental of consumer goods or services in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is made at a place other than
the place of business of the seller. The term "door-to-door sale" does not include a transaction:
(a) made pursuant to prior negotiations in the course of a visit by the buyer to a retail business establishment having a fixed permanent location where the goods are exhibited or the services are offered for sale on a continuing basis; or
(b) in which the buyer has initiated the contact and the goods or services are needed to meet a bona fide immediate personal emergency of the buyer, and the buyer furnishes the seller with a separate dated and signed personal statement in the buyer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days; or
(c) conducted and consummated entirely by mail or telephone; and without any other contact between the buyer and the seller or its representative, other than at the place of business of the seller, prior to delivery of the goods or performance of the services; or
(d) in which the buyer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer's personal property. If in the course of such a visit, the seller sells the buyer the right to receive additional services or goods
other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services would not fall within this exclusion; or
(e) pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker-dealer registered with the securities and exchange commission; or
(f) where the purchase price whether under single or multiple contracts, does not exceed twenty-five dollars and the products, goods, or merchandise purchased is capable of delivery at one time.
2. "Consumer goods or services" shall mean goods or services purchased, leased, or rented primarily for personal, family or household purposes, including courses of instruction or training regardless of the purpose for which they are taken.
3. "Seller" shall mean any person, partnership, corporation or association engaged in the door-to-door sale of consumer goods or services.
4. "Place of business" shall mean the main or permanent branch office or local address of the seller.
5. "Purchase price" shall mean the total price paid or to be paid for the consumer goods or services, including all interest and service charges.
6. "Business day" shall mean any calendar day except Sunday, or the following business holidays: New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and Christmas Day.
7. (a) "Personal emergency response service" shall mean (i) the provision and maintenance of electronic communication equipment in the home of an individual which signals a monitoring agency for help when activated by the individual, or after a period of time if a timer mechanism has not been reset; (ii) the continuous monitoring of such signals by a trained operator and, in case of receipt of such signal, the immediate notification of such emergency response organizations or persons, if necessary, as the individual has previously specified.
(b) With respect to a "personal emergency response service" as defined in paragraph (a) of this subdivision, the provisions of this article shall apply to the purchase by a consumer of provision for such service, whether or not such purchase is made in a "door-to-door sale" as defined in subdivision one of this section, except where applying any of the provisions of this article conflicts with any provision of section three hundred ninety-one-l of the general business law, in which case the provisions of section three hundred ninety-one-l of the general business law shall prevail. For this purpose, the transactional exclusions from the definition of "door-to-door sale" contained in paragraphs (a) through (f) of subdivision one of this section shall not apply to the sale or purchase of a personal emergency response service as defined herein, and the term "door-to-door sale" wherever used in this article shall be deemed to also mean any sale, lease or rental of a personal emergency response service to or by a consumer.