KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Who are considered subcontractors and why it matters
March 30, 2021
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Who are considered subcontractors
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Ken
            For the purpose of this disclaimer, are 3rd party communication services such as "AlarmNet", "Telguard", or "Alarm.com" considered subcontractors? Is there a well- defined line that would separate these service providers from subcontractors?
            We are a full service alarm company that only installs, services, and
monitors our own customers. The only time we've ever used what I would
consider a subcontractor is when we've hired a 3rd party to run wires for us for a commercial customer.
Ben
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Response
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            Most alarm companies use subcontractors in one form or another.  Some use them for installation or service; others for professional monitoring.  The issue arises in several contexts.
            While the Standard Form Agreements readily permit you to use subcontractors, a form agreement presented to you from your subscriber may prohibit the use of subcontracts.  If you can’t use subcontracts then you need to know whether you are in fact using them without realizing it.  The most common subcontractor is the Monitoring Center, your central station.  In the typical situation you, as dealer, will be contracting with the subscriber for monitoring services.  You will invoice the subscriber for the monitoring service and often act as the liaison between the subscriber and the central station.  In fact some dealers try to exclude the subscriber from any contact with the central station, which invariably is mistake [but that’s another article]. 
            If you’re using subcontractors to install or for service you usually recognize that fact.  In some cases you’re kidding yourself because if you have a subcontractor who is a one many operation who works for you 40 hours a week and answers to you, that’s an employee, not subcontractor.  You’ll find that out fast when you get a Workers Comp audit or the ”subcontractor” gets hurt on the job and has no recourse other than suing you as the employer who should have carried Workers Comp insurance for him. [also another article]
            Who is a subcontractor is important because your contract bestows certain benefits to your subcontractors, most notably the “protective” provisions in your Standard Form Agreements.  Thus your subcontractors are protected to the same extent you are by the exculpatory clause, indemnity clause, limitation of liability provision and arbitration clause.  That protection you provide to your subcontractors is important to you because it’s very likely that you have agreed to indemnify these subcontractors in the event your subscriber sues them. 
            The central station is most definitely your subcontractor.  I suppose there is no downside to including manufacturers and communication hubs and facilitators such as alarm.com, alarm.net, Napco’s Starlink and others who we commonly refer to as Third Party Vendors, as subcontractors.  Certainly you have agreed to indemnity some if not all of these vendors.  You are using their services and platforms to provide the service to your subscribers.  You also depend on the electric company, internet and cell service, but you don’t pay for them, your subscriber does; they are not your subcontractors.
            If your subscriber objects to using subcontractors you need to evaluate how you are delivering your services to determine if subcontractors play a part, and if they do, rest assured you will want them included in the subcontractor category and protected by your alarm contract.  
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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
www.KirschenbaumEsq.com