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Assigning contracts / Don’t miss final cs webinar next week
October 27, 2023
Assigning contracts   
    Can you clarify this statement in paragraph 7 in our All in One contract?
    “Neither party shall be permitted to assign this contract without the other party’s consent. ESSENTIALCOM shall be permitted to assign this contract and upon such assignment shall be relieved of further obligation under this contract”
    You have two seemly contradicting sentences in the same paragraph unless the two sentences are interpreted to mean that once you get the subscriber’s consent to assign you will be relieved of further responsibility.  These two sentences were NOT in the form All in One you purchased from K&K; it’s been modified.  The first sentence, prohibiting assignment by both parties read, when we sent you the form agreement, that the “subscriber is prohibited from assigning the contract”. 
    I don’t know if you discussed this change with this particular subscriber during contract negotiations or you decided to make modifications to the form for all subscribers.  In either case you made a mistake.
    In every buy-sell transaction the buyer will demand a representation from the seller that the contracts are assignable.  If one or more or all are not then that representation can’t be made and consent from subscribers will be necessary before a sale can proceed.
    This is not a mistake I would expect from a Concierge Client, which you are not, because a Concierge Client get a half hour each month for contract negotiations and revisions; why try and do it yourself? 
    Let me clear up a misconception:  Alarm contracts are assignable unless the contract prohibits assignment.  That general rule would apply to both alarm company and subscriber.  Permission to assign is not necessary; permission to prohibit assignment is necessary.  The Standard Form Agreements prohibit subscriber assignment of the contract.
    Why does the Standard Form Agreements expressly permit alarm company to assign?  Too many buyers and their lawyers think an express assignment clause is necessary; it’s not as far as I know.  But to satisfy their position its easy enough to add the assignment provision.  More importantly, assigning a contract does not relieve the party assigning of contract performance or liability, it merely adds another responsible party.  In order to be relieved of further responsibility the assigning party needs to get consent to be relieved of further responsibility, either in the agreement, which is in the K&K contracts, or in the assignment form consented to by the other party to the agreement who is consenting to the assignment.  Typically, a party will impose some conditions before letting an assigning party off the hook, including an assumption of the contract by the new party and some financial assurance that the new party is as responsible as the assigning party. 
    If you use the Kirschenbaum Contracts™ you’re covered, as long as you don’t change the agreement.

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Central Stations series: Why You Should Be Monitored By Our CS
Hear from the leading central stations and “Why you should be monitored by” that central station.  The topic of remote operator monitoring from outside the central station facility and the dynamics that issue presents is sure to come up. 
October 31, 2023 noon ET, Rapid Response Monitoring Center
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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