using Commercial All in One / electronic execution May 17, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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using Commercial All in One / electronic execution
May 17, 2018
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using Commercial All in One
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Ken,
    Can you confirm something about the rider to the Commercial All in One. In the original All-In-One with this customer we provided monitoring and service only. The original equipment installation was contracted with an EC and we were a subcontractor so we technically didn’t install equipment for the customer. But we were monitoring and servicing. So now we are installing a new system at a second site. We will be installing an access control, video  and intrusion alarm. The access control will be hosted. Can we use the rider if the original All-in-One didn’t include installation? 
Michael 
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Response
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    The "rider" you refer to is the Schedule of Equipment and Services.  In that rider [which is often the proposal originally approved by the subscriber] you outline the equipment and detail the functionality of that equipment and the services to be provided.  You will also detail the sale purchase price and how it's to be paid, as well as any other issues specific to that transaction - such as job to start at a delayed time.  
    You were a subcontractor on the first installation but apparently got your All in One signed for the RMR items, monitoring and service.  That's fine.  But now you have a new installation at new location.  Here you have the RMR items as well as the installation.  You need to use a new Commercial All in One.  
    Not to confuse the issue, but if you do multiple locations for a subscriber, whether you're signing up multiple locations at once, or agree to add the new locations upon request, get our Rider for Multiple locations.  It will turn your All in One into a Master Agreementfor additional or future locations.
    Pertinent to this topic, though I may have to explore it in more detail in other articles, is the question of whether it's OK to do just an installation using the GC's contract.  This comes up a lot with commercial fire jobs, but can also come up with access control, as in your case, and other systems.  While I prefer that you get an All in One Agreement signed [commercial security or commercial fire] since you are only doing the installation it's acceptable to go ahead with the GC's contract - of course you need to look at that contract and make sure it makes sense, to you].  But for the RMR items, you must get the All in One signed.  Why?
    Well, the installation is going to have some oversight and approval process.  Fire, for example, is going to have AHJ final approval.  Other systems will have GC, architect or owner final approval.  Your installation is approved and you're off the job and site.  But the RMR items keeps you around, and you have too much exposure to provide those services without the protection of the Standard Form Agreements, properly filled out and executed - so if you're not sure, ask me.
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another commercial All in One question
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Ken
    We are selling a high end condo association who will alarm all the condo units. I a using the All in One residential lease. The association is paying all of the alarm bills.  They will use alarm.com, but self-monitor at the guard house. Can we have the association represent that all occupants agree to the agreement, or do we need to have all residents sign their own agreement.
JS
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Response
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    If every end user can order different services, have their own pass codes and can turn the systems on and off, every one needs to sign their own contract, the Residential All in One [it will say that the condo assoc is paying for the monitoring].  You also need to get the alarm.com rider signed by each end user.  The only way out of this is if you know that the condo assoc has amended its rules to incorporate your contract terms and the alarm.com rider -- I doubt it will do that - so best to get the contract signed by each unit owner.   The condo assoc signs a Commercial All in One, not residential form.
    Another alternative is -- the condo is signing a Commercial All in One and you detail that it will be paying for all end users, that the assoc is your customer, not the end users, that the condo indemnifies you from end user claims -- and has insurance to cover you -- your contract does provide for all this -- if they sign it.
    The answer may also depend on the type of alarm being installed.  Say this condo is a single building and the system is a building wide firm alarm.  No unit owner will be turning it on or off, they won't need pass codes and they won't be requesting additional equipment or services, at least not through the condo association.  In that case only the condo assoc will sign a contract, and it will be the Commercial Fire All in One.
    When dealing with an owner who is contracting for other end users, such as tenants in a building, HOA for home owners in the community, condo assoc for apartment or attached or single homes or a co-op for its tenants, look to whether the end users have any control over the system, whether they can turn it off, have a code to cancel a false alarm, or ask for additional equipment or services.  If they have any of these, they should be signing their own contract.  The building owner, HOA or condo assoc will sign a Commercial - fire or security - All in One and agree to pay for the services, but the end users will also sign a Residential All in One that will state that someone else is paying the installation, monitoring, service, etc, charges.  This way, when there is a loss or claim you will have contractual protection for all involved.
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electronic execution
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Ken ,
    Thank You for all you do for our industry.
    Our new  Quoting software has the ability to import your contract and auto fill its contents. The prospect  can click a link and approve the quote as a package.  The package includes Quote, contract, brochure, data sheet and three day cancellation notice. The prospect clicks the “I agree this quote and the attached PDfs”  then proceeds to check out .  They also select options and payment method.  The prospects Ip address is also logged. Do you have any concerns with this?
anon
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Response
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    Yes.  You don't mention using the Disclosure and Consent to Electronic Communication form.  You need that to comply with consumer laws that mandate that you provide an executed copy of the contract, and the 3 day notice of cancellation form, at time of execution.  You are doing that electronically, and you need a separate agreement to do that.
    I am also concerned that you may be using the Wrap Around electronic method and not the Click through method.  While courts are upholding the Wrap Around method [this is where a new page pops up and asks if you agree to the terms in the previous pages] in the alarm industry you rely on very carefully drafted provisions, and in some cases state law requires that those provisions be signed or initialed separately to be enforced.  Many states require these provisions to be prominent or displayed in a very specific way.  I call for an initial in the Standard Form Agreements for these provisions so there will be less issue with whether the customer read and approved the specific provision.  I think you lose all that when you use the Wrap Around method.  I confess I am not an expert on electronic execution of contracts, but I am an expert on construction and drafting of alarm contracts, and I know that if you want these provisions to be enforced they need to be clear, unmistakable and easily read by the customer. 
    You made my response a little easier by asking if I had concerns.  I do.
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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