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Can you continue to charge for monitoring if customer won’t allow upgrade from 3G
January 25, 2022
Can you continue to charge for monitoring if customer won’t allow upgrade from 3G
          I have a quick question.  We currently use your contracts for our monitoring services. With the ensuing sunsets for the AT&T and Verizon cell devices we have a quick question that I was hoping you could answer quickly for me.
          If we are unable to switch a customer out to a new LTE device prior to the sunset are we liable and can we continue to charge the customer for monitoring? We have made ever means of communication to try and schedule appointments for us to switch these customers over (IE: Email, text and voice calls
          Thank you, for all you do and help in answering this question.
          The answer depends on your contract with the subscriber.  You use a Kirschenbaum Contract™, hopefully an updated version with 2022 copyright, so you have provisions that address the 3G issue as well as any obsolete equipment issue. 
          Several provisions that address the issue are below.  Bottom line is that you should notify your customers that their radios are not going to work because the carriers are shutting the service down, not you, and that you will replace the communication device at your customer’s expense.  You should emphasize that:
  *  it’s your subscriber’s obligation to replace the non-working devices, and replacement is not covered by warranty or Service Plan
  *  that the subscriber is obligated to continue paying for monitoring service, even if the subscriber refuses or neglects to upgrade the communication device
  *  that the subscriber will owe the balance of the contract if there is a default, and refer the subscriber to the legal paragraph in the contract.
          Here are the several provisions that address the issue:
          … ALARM COMPANY shall not be responsible for any failure which prevents transmission signals from reaching the Monitoring Center or damages arising therefrom, or for data corruption, theft or viruses to Subscriber’s computers if connected to the alarm communication equipment.
          ALARM COMPANY is not responsible for Subscriber’s access to the Internet or any interruption of service or down time of remote access caused by loss of Internet service, radio or cellular or any other mode of communication used by Subscriber to access the system.
          ALARM COMPANY is not responsible for access to wireless networks or devices that may not be supported by communication carriers and upgrades to Subscriber’s system will be at Subscriber’s expense.
    … communication devices that are no longer supported by communication pathways, obsolete components and components exceeding manufacturer’s useful life, are not included in warranty or service under paragraph 4(b) (ii) and will be repaired or replaced at Subscriber’s expense payable at time of service.

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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