The Exculpatory Clause / If attending Holiday Party please RSVP today November 22, 2024
KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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The Exculpatory Clause / If attending Holiday Party please RSVP today
November 22, 2024
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Holiday Party 2024 – this is your invitation - rsvp if attending
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The K&K Holiday Party will be on December 12, 2024 in Old Westbury, NY from 6:30 to 9:30 PM. You’re invited, but you do need to RSVP before December 1, 2024 so we can properly plan. Format is casual dress, cocktails and plenty of pass-around hors d'oeuvres; you won’t leave hungry.
Please send your RSVP to
Kathleen Lampert at 516 747 6700 x 319 or [email protected]
or Amy Laveglia at 516 747 6700 x 313 or [email protected].
Come see old and meet new friends at this social event. Looking forward to seeing you at the party.
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The Exculpatory Clause
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While court decisions dealing with the Exculpatory Cause use to be sparse, far and few, they are now ubiquitous. Daily I get copies of reported decisions dealing with the issue involving all kinds of industries and businesses. The court decisions often mix other provisions with the Exculpatory Clause, including the Indemnity provision and Limitation of Liability provision. These “protective” provisions do share a common issue, careful [sometimes extreme] judicial scrutiny. The provisions will be strictly construed against the draftsman and party seeking to enforce the provision. Though some courts will be more forgiving than others the safest and best practice would be to word these provisions in your contract with careful precision, and being mindful how the courts in your state interpret and enforce the Exculpatory Clause is essential if you hope to rely on the provision.
Simply put, the Exculpatory Clause relieves you of liability even for your own negligence in the performance, or failure to perform, your contract. It will also cover your breach of contract, though not likely for taking a payment and totally failing to perform, which is certainly not an intended use of the provision.
In some states the use of the word “negligence” is not needed, though I believe it’s preferable and there is no good reason not to use it.
The Exculpatory Clause is realty the bedrock of the alarm agreement. The other protective provisions all relate to and often supplement the Exculpatory Clause. Unfortunately many attorneys feel like they need to add their personal touch to the wording of the Exculpatory Clause and other provisions in the alarm contract. Nearly every change I’ve seen should not have been made, and the few I’ve seen that I like were quickly incorporated in the K&K Standard Form Agreements.
There is also no question that litigants, customers and their insurance companies claiming subrogation rights are emboldened to commence lawsuits against alarm, fire, security companies. This makes E&O coverage all the more essential, though carriers are no longer pricing the premiums with the belief that no claims are every paid [like the good old days], but that’s mostly because of a change of how carriers handle claims these days as opposed to how the law interprets alarm contracts.
If you aren’t using the K&K Standard Form Agreements then you should be, and waiting isn’t your best option, especially if you’re entering into contracts daily; you don’t know which customer will be the one with the crushing claim. Be smart, be prepared. Use the most popular contracts in the alarm industry; it’s for a reason and not just my good looks or winning personality.
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STANDARD FORMS Alarm / Security / Fire and related Agreements
click here: www.alarmcontracts.com
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CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304.
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