Security Dealer & Integrator

NOV 2018

Find news and information for the executive corporate security director, CSO, facility manager and assets protection manager on issues of policy, products, incidents, risk management, threat assessments and preparedness.

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November 2018 / Security Dealer & Integrator 23 theories of the defense – some factual and others legal. In preparing the key corporate witness for a deposition in the litigation, Jim highlighted the limitation of liability provision. This included a discussion of the part of the contract which stated that, for a higher monthly fee, the company would consider an increase in the limitation amount. The witness seemed to grasp the issue (or so Jim thought). Here is the relevant testimony: Plaintiff’s Counsel: “I refer your attention to the portion of the contract which states ‘subscriber may, as a matter of right, obtain from the company, a higher limit of liability (by paying an additional amount for the increase in such limit of liability), but the additional obligation shall in no way be interpreted to hold the company as an insurer.’ Was it the company’s practice to negotiate this with the subscriber if the subscriber requested a higher limit?” Witness: “I don’t think we would ever negotiate that.” At this point, attorney “Jim” almost fell out of his seat! This was a bad answer – and an inaccurate one relative to the company’s actual approach; however, this was the witness’ earnest understanding and he did his best in the deposition. The case was resolved very favorably for the company anyway. The lesson here is that companies seeking to enforce limiting conditions in any contract should remember that it is in their interest to accommodate at least a discussion with a customer on the terms of such contract. This does not mean the company has to cede to the demands of the customer or agree necessarily to amend the terms of the contract; however, a systematic unwillingness to negotiate the terms of a contract – even a form contract – risks that the contract or certain terms (such as a limitation of liability) may not be enforceable. This is a short-sighted approach and not good for your company. So, please make “Jim” happy and be intelligent about how you handle the issue of bargaining power in the contracting process. If you don’t, your company may suffer, and “Jim” may again fall out of his chair! ■ » Tim Pastore is a Partner in the New York law firm of Duval & Stachenfeld LLP, where he is the Chair of the Security Systems and Real Estate Cybersecurity Practice Groups. Before entering private practice, Mr. Pastore was an officer and Judge Advocate General (JAG) in the U.S. Air Force and a Special Assistant U.S. Attorney with the U.S. Department of Justice. Reach him at (212) 692-5982 or by e-mail at Entries Open SOON! SD&I FAST 50 America's Fastest Growing Security Dealers and Systems Integrators Now in its 9th year, the SD&I Fast50 program for America's fastest-growing security integrators will open for entries at the end of December! Get your company the recognition it deserves by entering this free ranking, research and strategy-sharing program for security systems integrators and dealers, endorsed by ISC West and SIA. Your entry also includes participation in exclusive research on industry trends, to be reported in SD&I. The top Fast50 companies will be unveiled at a live event at ISC West, and the full rankings and results of the exclusive market research will appear in the April 2019 issue of SD&I. Get full details and read about last year's top-ranked companies at the link below! Endorsed by ISC WEST SIA Visit or contact for full details.

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