American Dirt Contractors, LLC
TERMS OF SERVICE
(May 2025)
TERMS OF SERVICE (“Agreement”) are entered into by and between American Dirt Contractors, LLC (“American Dirt”), and you, the customer. This Agreement is effect as of the earlier date you accept and/or approve an American Dirt estimate for Services, as defined below, or American Dirt performs any Services for you (“Effective Date”).
1. Services. American Dirt is a professional excavation company. You are hiring American Dirtto perform excavating services (“Services”). American Dirt provides most Services based on time and material. American Dirt will, however, provide a written estimate for Services if requested (“Estimate”). All Estimates are nonbinding and subject to change without notice and in American Dirt’s sole discretion. You are responsible for the payment of all Services rendered, regardless if the cost of the Services exceeds any provided Estimate.
2. Existing Conditions. You acknowledge that the Services’ results are based upon field, lot, and other conditions known and existing at the time of performance. You further acknowledge that unknown existing or changed job, field, lot, and other conditions may require adjustments, modifications, and other changes to address the changed job, field, lot, and other conditions, resulting in increased Fees and Costs, as defined below. You are responsible for all additional Fees and Costs associated with reperformance of the Services due to unknownexisting or changed job, field, lot, and other conditions.
3. Duty to Inspect and Notify. You have a duty to inspect and notify American Dirt if you believe any of the Services were not performed to generally accepted standards of practice in effect at the time of performance. If you do not notify American Dirt of any potential issues within five (5) business days of performance, the Services performed will have been deemed accepted by you as satisfactory. If you do notify American Dirt that there is a potential issuewithin the notice period, then American Dirt will work with you to resolve the issue as soon as is practical.
4. Right to Cure; No Disturbance. American Dirt expressly reserves the right, although it is not obligated, to inspect and cure any claimed deficient work. If you, or any third party, disturb and/or take any actions to “correct” any alleged deficiency prior to American Dirt’s inspection of the same, you expressly waive any right to assert any claims, whether in law or equity, against American Dirt for the alleged deficiencies and damages. American Dirt, in its sole discretion, may, but is not obligated to, cure any alleged deficiencies as soon as practical. You expressly agree that American Dirt’s decision to cure is not an omission of liability and you may not bring any action, whether in law or equity, until American Dirt has had the opportunity to cure.
5. Project Information. You, at your sole expense, agree to provide to American Dirt all documents necessary to identify the ownership, location, and condition of all properties on which the Services are to be performed (“Project Information”). You agree to provide Project Information in a timely manner. You further agree to hold American Dirt harmless and indemnify American Dirt for all damages resulting from American Dirt’s reliance on and use of any Project Information.
6. Fees, Costs, Payments, and Penalties.
a. Fees. American Dirt will perform the Services at its then current time and material rate, unless otherwise agreed to in writing prior to American Dirt performing the Services(“Fees”). In addition, American Dirt may charge for travel time for Services performed outside of Pueblo County, Colorado, and such charges shall be considered Fees.
b. Costs. You are responsible to pay either directly, or reimburse American Dirt, for allthird-party costs and fees associated with the Services (“Costs”), including but not limited to inspection fees; assessment fees; soils engineering fees; soils testing fees;permits; and bond premiums.
c. Service Suspension. In the event you suspend performance of the Services, or American Dirt suspends performance of the Services for nonpayment, you agree to pay American Dirt for any additional Fees and Costs incurred because of the suspension and subsequent restart. If the Services are suspended indefinitely, you agree to pay American Dirt the full Fee amount associated with the suspended Services, regardless if the Services were completed prior to suspension.
d. Governmental Changes. If after the performance of any Service, the federal, state or local government regulations or laws that govern such Service change, and American Dirt is required to reperform any aspect of a Service to comply with new governmental standards, you agree to pay American Dirt the associated Fee, regardless if you previously paid a Fee for the same Service.
e. Third-party Acts. If American Dirt is required to reperform any aspect of a Service due to third parties’ acts or omissions, you agree to pay American Dirt the associated Fee, regardless if you previously paid a Fee for the same Service.
f. Payments. American Dirt will invoice you monthly in arrears, for all Fees and Costs incurred in the prior month. Payment in full is due upon receipt, and unless you contact American Dirt in writing within ten (10) days from the invoice date outlining any billing discrepancies, you agree the invoice amount is correct. You agree to pay all invoices in full regardless if a dispute exists and agree that if American Dirt determines, in its sole discretion, that an adjustment should be made, American Dirt will make any agreed upon adjustments on future invoices. No offsets of any kind are allowed.
g. Penalties.
i. Nonpayment. You understand and agree that a late penalty of one and a half (1.5) percent per month (18 percent per annum) will be assessed on any balance outstanding after fifteen (15) days from the invoice date. You further understand and agree that any balances outstanding after thirty (30) days may be sent to collections and a lien attached to the property. You understand and agree that should you default under the terms of this Agreement and if any balances are sent to collections, then you are also responsible for payment of all fees and costs associated with such collection, including legal fees and costs, and pre- and post-judgment expenses of collection.
ii. Bad Checks. It is illegal in Colorado to write a bad check. If you write a bad check, you agree to pay to American Dirt a nonsufficient fund (“NSF”) penalty of fifty dollars ($50) or twenty percent (20%) of the bad check’s face value, whichever is greater, in addition to the nonpayment penalties outlined above and any other damages American Dirt may be entitled to in law or equity.
7. Term and Termination. This Agreement shall remain in full force and effect until you have paid all outstanding Fees and Costs, and:
a. American Dirt or you provide written notice to the nonterminating party; or
b. American Dirt receives notice that you have filed a petition for bankruptcy or if an involuntary bankruptcy petition is filed against you, and such petition is not dismissed within fifteen (15) days of its filing. Any suspension of services made pursuant to the provisions of this paragraph shall continue until such time as this Agreement has been fully and properly assumed in accordance with the applicable provisions of the United States Bankruptcy Code and in compliance with the final order or judgment issued by the Bankruptcy Court.
In the event of termination, you are responsible for payment of all Fees and Costsincurred for Services provided through the termination date, or as a result, of termination.
8. PERSONAL GUARANTEE. BY ENGAGING AMERICAN DIRT TO PROVIDE THE SERVICES, YOU, WHETHER AN INDIVIDUAL, ENTITY OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, PARTNER, OWNER, AGENT, OR EMPLOYEE, ARE EXPRESSLY AGREEING TO PERSONAL, JOINT AND SEVERAL LIABILITY FOR THE PAYMENT OF ALL FEES AND COSTS, WHETHER INCURRED BY YOU, YOUR ENTITY, OR YOUR EMPLOYER PURSUANT TO THIS AGREEMENT.
9. Warranties.
a. You expressly warrant to American Dirt that it has express permission to enter onto the properties on which the Services are to be performed and agree to hold American Dirtharmless and indemnify American Dirt for all damages resulting from your breach of this warranty.
b. AMERICAN DIRT MAKES NO WARRANTY, EITHER EXPRESSED OR IMPLIED, AS TO ITS FINDINGS, RECOMMENDATIONS, OR PROFESSIONAL ADVICE EXCEPT THAT THE SERVICES WERE PERFORMED PURSUANT TO GENERALLY ACCEPTED STANDARDS OF PRACTICE IN EFFECT AT THE TIME OF PERFORMANCE. You acknowledge that excavating is an inexact science and will always contain some inaccuracies due to conflicting and imperfect legal descriptions, plats, deed, monument, lines of possession, and lot conditions, and American Dirt is not responsible for variances due to such inaccuracies.
10. Third-Party Actions.
a. Governmental Agencies. You agree that under no circumstances will American Dirt be liable for any damages related to any governmental agency’s actions or inactions including, but not limited to, permitting; environmental impact reports; dedications, general plans, and amendments thereto; zoning matters, annexations or consolidations; use or conditional use permits; and project or plan approvals.
b. Third-Party Actions. You agree that under no circumstances is American Dirtresponsible for any damages related to any third parties’ actions or inactions, including your failure to provide Project Information in a timely manner.
11. Delays. You agree that American Dirt is not responsible for delays caused by factors beyond American Dirt’s control, including, but not limited to, delays caused by strikes, lockouts, work slowdowns or stoppages; material unavailability; accidents; and acts of God.
12. Lien Rights. This Agreement shall not be construed to alter, affect, or waive any of American Dirt’s lien or stop-notice rights. You are solely responsible for providing to American Dirt the name and address of all property owners. You are also solely responsible for providing to American Dirt the name and address of all persons, including lenders, who are entitled to receive a preliminary notice of any liens. You expressly acknowledge that failure to provide accurate property owner and lender information constitutes a material breach of this Agreement.
13. Limited Liability, Indemnification. You agree to indemnify and hold harmless American Dirt and its officers, directors, agents, and employees, the “Indemnified Parties”, from and against all liabilities, losses, claims, damages, costs and expenses incurred by American Dirt, its officers, directors, agents or employees as a result of your, or your agents’, negligence or other misconduct in connection with the provision of the Services under this Agreement. In addition, you agree to indemnify and hold harmless the Indemnified Parties from any legal actions initiated against you or the Indemnified Parties by any third-party, including homeowners’ or community associations, unless you previously notified American Dirt of unsatisfactory performance of a Service pursuant to Paragraph 3 above, and American Dirtdid not resolve the issue.
14. General.
a. Non-disparagement. During and indefinitely after the termination of this Agreement, the parties agree that they will treat each other respectfully and professionally and not engage in any vilification of the other and refrain from making any false, negative, critical, or disparaging statements, implied or expressed, privately or publicly, concerning the other, including, but not limited to, management style, methods of doing business, quality of services, role in the community, or treatment of others. The parties further agree to do nothing that would damage the other’s business or personal reputation or goodwill; provided, however, that nothing in this section shall prohibit the disclosure of information that is required to be disclosed in compliance with applicable laws or regulations or by order of a court or other regulatory body of competent jurisdiction. As the loss or damages associated with a breach of this paragraph is difficult to precisely estimate, you expressly agree that if you violate this provision that, in addition to any other legal remedies American Dirt has in law or equity, you shall be responsible to pay to American Dirt TEN THOUSAND DOLLARS ($10,000.00) upon written demand. If you do not pay this amount within five (5) business days of the written demand date, these amounts shall be subject to paragraph 5.g.i. This is a material provision and survives this Agreement’s termination.
b. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all previous communications, Agreements, representations, and agreements, whether oral or written, relating to the subject matter hereof. If you should require that American Dirt also execute your agreement, you expressly agree that this Agreement’s terms shall govern and be binding should your agreement contain any conflicting terms, regardless of the sequence of execution of this Agreement or your agreement.
c. Survivability. You expressly acknowledge that notwithstanding this Agreement’s termination, you are bound by all the terms of this Agreement that survive termination.
d. Binding Effect. The parties acknowledge and agree that this Agreement will be binding upon their heirs, executors, administrators, and other legal representatives.
e. Assignment. Neither this Agreement, nor any rights or duties arising under it, may be assigned, delegated, or subcontracted by you without American Dirt’s prior written consent. American Dirt may freely assign this Agreement.
f. Severability. The parties agree that, should any provisions of this Agreement be determined by a court of competent jurisdiction to violate or contravene any applicable law or policy, such provision will be severed and modified to the extent necessary to comply with the applicable law or policy, and such modified provision and the remainder of the provisions hereof will continue in full force and effect.
g. Waiver. You agree that any delay or omission on the part of American Dirt to exercise any right under this Agreement will not operate as a waiver of such right or any other right; and that a waiver of any right of American Dirt hereunder on one occasion will not be construed as a bar to or waiver of any right on any future occasion.
h. Amendment. This Agreement may be amended in whole or in part at any time in American Dirt’s sole discretion, so please review them frequently. You are bound by such changes for all Services performed after the amendment date. The most current version of this Agreement can be reviewed by clicking on the “Terms of Service” hypertext link located at the bottom each American Dirt website page. We encourage you to keep a copy of this Agreement for your reference.
i. Governing Law; Jurisdiction; Venue. You acknowledge and agree that this Agreementwill be interpreted under and enforced in accordance with the laws of the State of Colorado without regard to its conflicts of laws rules. The parties consent to the jurisdiction and venue of the state and federal courts for the State of Colorado.
j. Attorney’s Fees and Costs; Liability. If any act at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs. In no event, is American Dirt liable for yourloss of profits, incidental or consequential damages under this Agreement, whether based in contract, tort or statutory law.
k. Notice. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be considered properly given and effective upon receipt when: (a) deposited in the postal mail, certified, postage prepaid; (b) delivered in person; (c) sent by overnight delivery by a nationally recognized express transportation company; (d) sent by facsimile with a transmission confirmation; or (e) sent by electronic mail with a delivery confirmation; and addressed to the appropriate party, unless by such notice different contact information shall have been designated.
