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Do you offer maintenance contracts?
November 25, 2022
Do you offer maintenance contracts?
          I still get calls for Maintenance Contracts; for all kinds of alarm systems.  I’m not sure any of those calls were from an alarm company that actually provided maintenance service.  I have long advised against using the word “maintenance” in your alarm contract; Excerpts from the following case is why:
          “An elevator company which agrees to maintain an elevator in safe operating condition may be liable to a passenger for failure to correct conditions of which it has knowledge or failure to use reasonable care to discover and correct a condition which it ought to have found” … “Further, a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons…where the contracting party has entirely displaced the other party’s duty of safe maintenance”.
           Imperial’s elevator inspection and maintenance contract required it to “maintain, inspect and service” the subject elevator, to use “reasonable care to maintain the elevator in proper and safe operating condition,” and to keep the subject elevator in reasonable working order. Furthermore, the maintenance contract required Imperial to “regularly and systematically examine, clean, lubricate and furnish lubricants for the machine, motor and controller parts,” and to “adjust equipment for proper operation.”           Imperial failed to demonstrate, prima facie, that it did not owe a duty to the plaintiff in light of the terms of its elevator inspection and maintenance contract.”  Citations omitted
          So what’s wrong with maintenance?  It’s wrong because, last time I checked, you do service on request.  Something goes wrong with the alarm and you then go and fix it. 
          What about fire?  Well, you do Inspection service as required by law, usually once or more often per year.  If you use the Kirschenbaum Contract™ for commercial fire, the Fire All in One, you know that Inspection Service does not include repair service.  Repair service is either performed pursuant to a Service Plan [with RMR], on a per call basis [which is exactly what it sounds like, when you’re called for service].  It’s not common for you to contact your customer and suggest that you be paid to stop by, look around, and make sure the system is operating; that’s because the system is operating and has not caused any issue that would make the customer think the system needs service.
          Repair service generally insures that the system is working when the service call is complete; Not longer than that; not quite a “tail light” warranty, but if the system isn’t working when you leave the customer should know that because the system won’t activate or will send trouble signals that repairs are required.
          Is it OK to offer to do some “maintenance” when you do the Inspection?  Yes, but what you will do should be detailed carefully and should not include a catch-all statement that you will inspect and maintain the system because something could go wrong requiring service before your truck leaves the driveway.  Worse, maybe nothing goes wrong except the customer suffers a loss that needs to be blamed on someone, someone like you who was recently in the premises working on the alarm or other security equipment.
          You certainly understand that you don’t offer guard response when you don’t intend to provide it; why offer maintenance when you don’t intend to provide it.  And if you do intend to provide maintenance, what exactly do you intend to provide, because a system failure resulting in customer loss can too easily be blamed on a security system that was not properly maintained.
          For clarity, a break-in occurs.  The alarm didn’t send a signal.  Under the All in One agreement you have no duty to repair the alarm system unless you are on notice of its need for repair.  In fact, you have no repair duty unless the system is under warranty or Service Plan.  You have no liability for an alarm out of operation which fails to detect an alarm condition without the contractual duty to repair the system, and that duty would not arise without notice.
          If you have a Maintenance Contract you would face the same issue in the previous paragraph and also a claim that it was your duty to keep the alarm system operational in the first place.
          The word “maintenance” does not appear in any All in One [even the Fire All in One].  If you see that word in your contract, get new contracts.  If you use that word in your proposal, get rid of it.  If you use that word in your sales pitch, change the pitch.
          Your contracts more than 2 years old, get new contracts, today.

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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