The Basics of Pool Service Agreements: Language and Advantages

Defining a Pool Service Agreement

A basic pool service agreement is a contract between a pool owner and a pool company. The contract defines the scope of work and the work to be performed. A well-rounded basic pool service agreement should define the type and frequency of service (e.g. weekly, bi-weekly), what comprises that service (pool cleaning, chemical testing, skimming, vacuuming, filter cleaning, equipment check), as well as the charges for services, including one-time or seasonal charges (e.g. pool opening, pool closing, filter change-out, heater repair) and the payment terms (e.g., when payments or scheduled, accepted methods of payment, late fees, etc). A well-drafted pool service agreement should also address pools that fail chemical parameters, including any additional charges for remediation , or when service can/should be performed at no-charge.
The use of a basic pool service agreement benefits both the pool owner and the pool company. A pool service agreement memorializes the agreement between the parties in the event of a dispute or disagreement. The pool owner is protected from damages for which the pool company is responsible, including but not limited to damages to pool decking, equipment, landscaping, etc. In addition, a pool service agreement can protect the pool company from terminated service fees and other ongoing maintenance obligations which the pool owner may not be inclined to fulfill. A pool service agreement can also protect any liability the pool company may incur with respect to the pool relating to its maintenance or upkeep.

Typical Components of a Pool Service Agreement

As with any other service contract, a pool service agreement should contain several key elements:
Scope of Work
Your agreement should detail the work that your service company will perform, the frequency that it will be performed, and the specific location of your pool or spa. It should also indicate any materials or equipment that may be needed for the service and the responsibility as to who shall provide them. Properly specifying both frequency and location will help avoid any misunderstandings as to the day of the week or the exact structure that you would like the company to service.
Pricing
The pricing portion of your agreement should also be clearly set forth. You should know whether you will be charged on a monthly or per service basis, if a certain amount of the fee is due at signing, and if and when the agreement can be terminated. Many pool servicers offer special packages, such as spring clean-ups or winterization services at reduced rates.
Service Add-ons
Your agreement should also state whether any additional services are included, such as screening the area around the pool for debris or picking up items that have blown into the pool. If the terms and conditions of these add-ons are not spelled out in your agreement, it can easily create disputes if something goes wrong.

Advantageous Aspects of a Pool Service Agreement

For pool owners, having a written pool service agreement clarifies what to expect from their service. Also, it ensures that they pay for a set number of visits in a calendar year. Furthermore, they will not be subjected to service charges for extra services, such as clearing a clogged skimmer or disinfecting the pool due to swimmer illness, that should have been addressed free of charge as part of regular maintenance.
For service professionals, having a signed service agreement protects them from "drifting expectations" with the pool owner and establishes the established procedures necessary to properly maintain the pool. For example, a service provider may routinely remove leaves from the pool cover of a closed pool during the winter months. However, it may not explicitly be part of the service provider’s duties to lift, clear, and retighten the closing latches after the pool has been re-opened and the cover removed each water. Having a service agreement provides a reference point for issues such as who should be expected to carry out those duties and who should pay for any equipment issues that arise as a result.
Another benefit of a service agreement is to prevent disputes regarding payment for services. In some instances, pool owners will hold payment until a service provider can address and fix pool problems beyond the scope of the standard service agreement, which can stretch beyond a reasonable timeframe for the service provider. Also, pool owners may hold payment until the service provider has provided proof of valuable property and liability insurance coverage. Providing it at the signing of the service agreement will avoid this situation.
Having a service agreement can also prevent pool service providers from an overreliance on oral agreements which are difficult to prove, particularly with regard to fees and the scope of services. For example, some pool owners will become upset with a service provider when the owner needs to cancel a service on short notice (typically within 48 hours of service). If the owner cancels the service, but does not formally give notice in advance under the terms of the agreement, the service provider may charge a cancellation fee without fear of being sued for breach of contract.
The industry is highly competitive, and less legitimate service providers will make promises they cannot keep regarding service standards and warranties, extras and service credits, and timeliness issues. In addition to protecting all parties, a service agreement will weed out less reputable providers.

Common Pool Service Agreement Terms

Most pool service business agreements contain certain common terms and conditions. Here are some examples of the standard terms and conditions of pool service contracts and their implications.
Indemnification. Pool service contracts generally require that the pool service company indemnifies the homeowner against any claims arising from the work performed by the pool service company. Because contractors are always entering and leaving the premises, they often require the property owner to save them harmless for any injury as a result of those parties entering and leaving the property. However, most contracts also require that the contractor is responsible to maintain insurance covering such risks while working on the property. Pool service contracts are generally no different from standard construction contracts in this regard.
Ownership of Equipment. The contractor generally will require that the pool owner be responsible to provide all of the pool equipment and parts for the pool, but that the contractor will own the pool sweep or pool cleaner. The property owner will be responsible to provide the pump, filters, and heaters. This is a very common provision in pool service contracts, however property owners should be careful not to accidentally waive any rights they may have under California Civil Code § 831 which protects the property owner if the contractor causes any loss to the property owner’s improvements on the property.
Termination Clause. All pool service contracts should contain a termination clause which allows either party to terminate the contract agreement on a conditional or unconditional basis. In such a case, the narrow facts of the termination clause should be followed by both parties.
License Clause. Pool service contracts should require the contractor to maintain a business license, contractors license and liability insurance at all times during the contract agreement. Such clauses benefit the homeowners to ensure that the pool service company is performing the work legally and responsibly.

Picking the Right Pool Service Company

When evaluating the terms of the pool service agreements outlined above, pool owners should consider:
• The services to be provided and how often; make sure that the provider is qualified to perform those services
• The method of payment, including whether payment in advance is a "discount"
• How you will be notified if pool service will be delayed or canceled for any reason
• What constitutes "extra services" and the hourly and trip charge for those services
• Do you really want to pay extra when you agreed to service for the entire pool?
• Does the scope of the agreement include service for all of your pool equipment and water features?
• Is there an agreement to make service calls on holidays and weekends and what is the fee for those holiday service calls?
• Responsibilities of the parties to provide, maintain and repair products, devices, etc .
In most cases, your service provider will be at your pool weekly or bi-weekly. You are relying on them to help keep your family safe so it is worth the time and effort to review service agreements carefully and ask questions to understand the terms of the agreement.

Avoiding Mistakes with Your Pool Service Contract

When entering into a service agreement with a pool service provider, it is essential to be cognizant of a few common pitfalls. While there may be issues that are specific to the service being provided, here are some general areas all parties should be mindful of:

• Be cautious if your proposed contract is longer than three (3) pages. Any longer contract should be carefully reviewed and the reasons for its length discussed with your service provider.
• Check the cancellation provisions. If the contract is for more than one year, a termination provision should be included to allow for termination for cause for non-performance or non-payment.
• Whether the contract is for a specific duration, it should contain a termination provision to clearly define the process for early termination due to material defaults.
• If the contract includes a non-circumvention clause, this should be strictly adhered to so that neither party approaches another’s employees directly to replace them. Direct solicitation by either party can create unnecessary distrust and fear on the other’s party’s part. Avoid this type of problem altogether by adhering to a strict prohibition against solicitation.
• Another common pitfall is not clearly defining the scope of services to be rendered. Some contracts leave details on the scope of work to a "work order" or separate document, but these should be referenced in the body of the contract, rather than just included as an attachment.
• Agreeing to "force majeure" clauses should be avoided whenever possible. While having reasonable protections against Acts of God and natural disasters is understandable, truly bizarre events have occurred that could arguably fit in the category and keep a party from performing.

Be aware of other things that you will need to watch out for when considering and/or negotiating a pool service contract:

1. Do not allow your pool service provider to consolidate the payment for each service into a single payment, unless it is for a very specific, limited purpose. While this might be convenient for some, it is also very convenient for the provider because it allows the provider to keep the entire fee upfront (and hold onto it until you start asking questions about your pool).
2. Review the insurance requirements closely. These should be obtaining and maintained by the contractor, not you.

Negotiating a Reasonable Pool Service Agreement

A pool service agreement can be lengthy and comprehensive, however, it’s important to not lose sight of the terms that really matter and will keep both parties protected. Here are some key terms a homeowner and a pool service provider should discuss and negotiate prior to entering into the service agreement with respect to payment schedule and methods, inspection rights, compliance with regulations and billing, and limitations of liability.
Payment Schedule and Methods
It is important to understand how often the pool service provider will expect to be paid, as well as how the payments can be made. For example, some pool service providers will require payment to be remitted on a monthly basis, while others will allow weekly payment. As for methods of payment, some service providers will only accept credit card payments or checks , while other service providers will accept a variety of payment methods.
Inspection Rights
The service agreement may not allow for the homeowner to inspect written reports of the service provider’s work. This term should be negotiated so that the homeowner has the right to inspect those records. Additionally, if there is a serious safety issue with the work performed by the pool service provider, the service provider’s inspection rights should be limited.
Compliance with Laws
The standard service agreement may not require the service provider to comply with all building codes and regulations. If the service provider is performing construction work, then they should be required to comply with the applicable building and swimming pool laws.
Limitation of Liability
The service agreement may contain a strict limitation of liability in favor of the pool service provider. It is important to negotiate this provision so that the liability of the pool service provider is not a total disadvantage to the homeowner.