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Limitation of liability and defending claim case analysis / Contract Sale - don't delay or miss out
January 6, 2021
    The Standard Form Agreements have been updated for 2021.  If your contracts are from 2019 or earlier you need to update.  If you have a 2020 Contract the Contracts were updated throughout 2020 and you should check with our Contract Administrator, Eileen Wagda, at 516 747 6700 ext 312 to see if your forms need updating.  Contracts purchased after September 1, 2020 are already updated.  Keep in mind that updates are free for 6 months and half price for 12 months from your original order date. Requests for updates will be processed after the new orders are processed.  The sale ends January 12, 2021; the sooner you order the sooner you will get the contracts. 

How to order: order at ordering is easy - order on-line during the sale and save thousands of dollars.  Need help ordering?  Call our Contract Administrator Eileen Wagda at 516 747 6700 x 312 for assistance. Concierge Clients can call our Concierge Program Coordinator Stacy Spector, Esq for assistance at 516 747 6700 x 304. Concierge Client receive an additional 10% off the sale price.  You can join the Concierge Program before ordering to receive the discount.
    Contract sale starts now and runs through January 12, 2021, ending at midnight EST. The discount will be applied orders received between now and January 12, 2021 by midnight*.  This will definitely be the best deal of 2021.  If you have K&K Contracts changes have been made and you should check with our Contract Administrator, Eileen Wagda, at 516 747 6700 ext 312 to see if your form needs updating.  We starting adding the updates several months ago so you may be up to date. Keep in mind that our updates are free for 6 months and half price for 12 months from date of purchase***.  Updates will be prepared and sent out after the new orders are processed.  The sale ends January 12, 2021, so please be patient.  When you place the order the full price will come up. We will apply the discount manually when we process the order.  Contracts will be delivered by email only.

Here's the deal:
    Buy 1 All in One Residential, Commercial or Fire All in One and get $100 off and $50 off Disclaimer Notice  Save up to $150.
    Buy 2 All in One forms and get $100 off first and $200 off second and $75 off Disclaimer Notice and $100 off rider and $100 off the Honeywell rider.   Save up to $575.
    Buy 3 or more All in One forms and get same as above and $300 off the third form and $400 off the fourth form.  Save up to $1275.00 [Residential, Commercial, Fire, Home Automation]
    Commercial Mobile Surveillance Lease $1000.  Save $500
    Fire All in One with Security Rider $1250.00. Save $400.00  Add the Commercial Fire All in One and the Commercial All in One and get $200 off each.  Save $800.00
    Qualifier Agreement $1200.00   Save $300.00
    Digital Sign And Display Sales, Hosting And Service  $437.50  save 50% $437.50
    Computer Consulting and Service   $437.50  save 50% $437.50
    Nationwide DIY with monitoring.  $3500.00 Save $1000.00**
    Nationwide PERS with or without GPS tracking. $3500.00 Save $1000.00**
* Your order must be placed on line at and received by our office no later than January 12, 2021 by midnight EST.  Orders must contain valid credit card payment and be processed; you will receive confirmation.  Fill out the order form; the full prices will show and we will apply the discount before processing the order.  Orders arriving after sale ends will be processed at regular published rates.  Orders will be processed in order received.  Rush orders, delivered by email within 48 hours, add 15% - call Eileen to process.
Concierge Clients will receive their Concierge Program Discount on the Sale Price.  Sign up for the Concierge Program before placing your contract order to receive the additional discount.

** Does not include consultation or modification
     What's our Guarantee policy re updates?      
Free updates within 6 months of purchase***      
Half price within 6 months to 1 year***  
*** applies to original purchase only

Limitation of liability and defending claim case analysis
            I'm feeling a bit feisty [you may say obnoxious - matter of semantics] and want to comment on a recent case decided by an appellate court in Louisiana dealing with a limitation of liability clause.  My observations are my opinion, so the offended parties can forgot about defamation suit, which they would probably screw up anyway.
            Homeowner hires ServPro for water damage cleanup and ServPro causes further damage during its performance.  Homeowner sues.  The lower court enforced the limitation of liability clause on a motion right before trial.  Homeowner appealed and appellate court reversed and sent it back because of issue of fact regarding the contract execution.
            Two things struck me as comical because it seemed so stupid.  Just as I would expect.
            First is the wording of the limitation of liability clause.  The idiot who wrote it made sure to protect "PROVIDER, ITS OWNERS, ANY OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, FRANCHISOR, OR AFFILIATES", presumably running out of room to add parents, children, relatives and who  knows who else.  But that's just an aside.  Here's the limitation the genius wrote:
            What's wrong with this picture?  The limitation is 3 times amount customer paid, or actual proved damages, whichever is less.  Sounds reasonable to you?  It's not.  It shows a lack of understanding of the limitation of liability provision.  The limitation comes into play only if liability is found, which distinguishes it from a liquidated damage provision.  So first the claimant needs to establish that the defendant is actually liable under some legal theory.  Once liability is established the claimant can then proceed to prove damages.  If the proven damages do not reach the limitation then the established damages will be the proven damages.  There is no need for the provision to state that damages are limited to the proven damages; that will be the case. 
            The second screw up was even better.  The ServPro contract had a provision on the front of the contract, where the homeowner signed, stating that terms were on the reverse side.  ServPro claimed that it's contracts were carbonized and the front always came with the back.  Sure.  But the defense attorney, when responding to discovery demands, only sent the front page; not the back page [according to claimant's counsel].  So claimant and claimant's counsel didn't see the terms on the reverse side, including the limitation of liability clause.  The decision doesn't mention whether the defense counsel quoted from the reverse side in the Answer to the Complaint, but claimant's counsel took the position that the reverse side, not produced during discovery, was never given to the homeowner and the homeowner never saw or read it.  Of course the homeowner promptly confirmed that position one concocted by her counsel.
            The lower court enforced the contract but the appellate court, correctly, reversed because there was issue of fact whether the contract signed by the homeowner had the reverse side provisions.  Instead of being able to limit damages to some $3500 the homeowner was claiming $850,000 in actual damages.  That's a costly screw up by defense counsel, in my opinion, but pretty much what I'd expect from most insurance defense counsel.  
            What's today's lesson?  Your contract includes every word of your contract; every page; every other document referred to in your contract.  When you get your contract signed make sure all pages and parts are included.  When you send it to an attorney, make sure it's complete.  When your attorney puts in legal papers make sure you get a copy and make sure the entire, complete, contract is included in those papers.  You might be lucky enough to get an insurance defense counsel who knows something about the alarm industry; someone who has had other cases and handled them successfully.  I know they are out there.  But you should assume you're not so lucky and you need to take an active role monitoring your case.  You will have monetary consequences if your defense case is mishandled.  
            You will also have consequences if your collection cases is mishandled, sometimes beyond just losing your contract value.  Become a K&K Concierge Client and sign up for "house counsel" guidance for your day to day situations and for the significant issues that arise from time to time.  And, K&K collection department will support our contracts if they are your contracts.  Don't dehydrate; I'm offering you a bucket of water.

To order up to date Standard Form Alarm /  Security / Fire and related Agreementsclick here:
You can check out the program and sign up here: or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
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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