KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE

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billing cycle issue / font size / audio / DIY and Honeywell
October 27, 2018
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billing cycle issue
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Ken,
    We occasionally have customers sign a contract with a monthly invoice billing cycle and later the customer requests to change the invoice billing cycle to a quarterly basis (or vice versa). Could a customer use this against us (especially if they are in default) by saying we are in breach of our contract for changing/not honoring the invoice billing cycle frequency listed on the contract? If so, does having their change request in writing cover us?
    We use your contracts which say payments are due on the first of the month. If we disconnect a customer on the first of the month for nonpayment, we end up having to pay our central station for the entire month. But, if we invoice on the first of the month with a 30 day term, invoices will be due on the 30th, We can disconnect on the 30th and we only have to pay central station for the time services were actually provided to the customer. (Our service invoices are usually billed with a 30 day term based on the date of service.) Could a customer use this against us (especially if they are in default) by saying we are in breach of our contract for changing/not honoring the invoice due date listed on the contract?
Thank you in advance,
Anonymous
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Response
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    You will have less disputes and problems if you follow the contract language. If the contract calls for monthly billing then that's what you should be doing. The Standard Form Agreement provides for the billing cycle, even though the charges are specified as monthly.
    Clear contract provisions can be modified by customer and practice. So if the contract calls for monthly billing and you have billed on a different periodic frequency, it's not likely that either you or the subscriber will be able to challenge the contract because of the departure in terms. 
    Your contract permits you to charge in advance. You can send an invoice June 1 that covers from July 1 to July 31. If the payment is not received by June 30 you could, theoretically, terminate the contract on July 1. I don't think this is a practical way to manage your accounts. Getting stuck for an extra month with the monitoring center is not going to be burdensome. 
    If you pursue collection matters against your defaulting subscribers I would generally recommend continuing to monitor them, at least until time of arbitration or trial, especially if you can establish that the alarm is being used by the subscriber. That fact will go a long way to helping you prevail in the collection action.
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font size
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Ken,
    I recently purchased some contracts from you and just noticed that the type font is 7.5. I was under the impression that New York State required a type font of 8. Your thoughts?
Gary
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Response
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    The commercial contracts do not have to be 8 point font [New York requirement]. Residential contracts should be at least 8 point type and be legible. Commercial contract should also be legible, but the print can be smaller.
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audio
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Ken,
    Love reading your articles. 
    I have a customer that has a body shop with a reception area, he has concerns about employees. He has a camera system but no audio; can he install a audio device in the reception area?. Please keep our company name 
private
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Response
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    Installing mechanical listening devices or audio recording devices is perfectly legal. You can install the system. It's how your subscriber uses the system that counts, and it's the subscriber's problem [unless you have offered opinions that you shouldn't be offering]. Every state is either a one party or all party state for consent. Employees can consent to audio in the work place in their employment contract or approving the company handbook [or specific consent form]. Others entering the premises can also consent, but they have to consent affirmatively, not by default and not by implication. By that I mean that I do not believe that a sign that the premises has video and audio surveillence will suffice. I don't believe letting someone know about the survellience is sufficient; just because they don't leave doesn't mean they consented to the surveillance. Signing a consent form or agreeing on the recording that they consent would be sufficient.
    If your subscriber runs afoul of the privacy laws and you get dragged into an action, you'll be glad to have the Standard Form Agreement and rely on the Indemnity Provision, as well as the provisions dealing with the audio and video systems and services.
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comments on DIY and Honeywell
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Ken:
    I like the way Gene from Reliable Alarm and John from New Jersey think when it comes to the DIY customers!
Just saying.
John from Alabama
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Response
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    Both have been in this industry a long time and don't mind stating their opinion.
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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