SIW "Legal Side" columnist Ken Kirschenbaum, Esq., is a New York-license lawyer practicing with Kirschenbaum & Kirschenbaum PC, a Long Island legal firm with a rich history of assisting clients in security and alarm-related matters.
Last week I was asked by two different alarm companies to review contracts. I was surprised to find that one contract had in its printed form the word "maintenance" and the other took the trouble to type in the word "maintenance" in the schedule of protection in a monitoring contract. I really thought I had covered this topic in clear and concise language, leaving no room for interpretation or error. Let me try again.
The word "maintenance" does not belong in an alarm contract. Period. The permissible words are "service" and only when you are actually doing it, "inspection". In my own contracts, only the Fire Inspection Contract has "inspection" in its printed form.
Though I am hardly an expert with words, here is my reasoning. The word "maintenance" implies, to me, that you are taking on the responsibility of insuring that the system is continuously working properly, which you would do by constant inspection, preventative maintenance and repair. Unless you are on the premises on a full time basis and agree to insure uninterrupted operation, you are not doing "maintenance".
If on the other hand you agree that you will fix the system once you are alerted that it needs repair, even if your monitoring facility can alert you before the subscriber does, then you are providing "service" by servicing the system.
Some alarm companies do offer inspection, and some systems, such as fire, require inspections. Your contract can bind you to that obligation, or it can be imposed by law or ordinance. But, you should not routinely offer it, or provide for it in your contract if you are not performing inspections.
In my mind inspections impose less burden than maintenance. An inspection may not reveal a problem that does not exist at the time of the inspection, and inspection does not seem to carry the same continuing responsibility as "maintenance".
So, if you insist on being difficult or different and using the word "maintenance", then I suggest you define what you mean by it in your contract.