IronPlanet Australia User Agreement

Last revised on 19 August 2008

The IronPlanet Australia Pty Ltd web site currently located at http://www.ironplanet.com.au (the "IronPlanet Site" or "Site") and services offered herein including the auction services in the IronPlanet Featured Auctions ("Featured Auction") or IronPlanet Owner Auctions ("Owner Auction" and collectively the "Services", "Auction" or "Auctions") for equipment and other items (collectively "Equipment") are provided by IronPlanet Australia Pty Ltd, ABN 98 125 389 442 ("IronPlanet" or "we") to you ("you" or "user") subject to the following terms set forth in this User Agreement (the "Agreement").

Acceptance of Terms. Before you attempt to buy or sell any Equipment through the Services and/or begin participating in or using the Site, IronPlanet requires that you read and accept the following Agreement. BY REGISTERING, CHECKING ON THE SPACE NEXT TO THE "ACCEPT TERMS & CONDITIONS" TEXT AND/OR OTHERWISE USING THE SITE, YOU HEREBY REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THE TERMS OF THIS USER AGREEMENT AND ALL TERMS INCORPORATED BY REFERENCE. If you choose not to accept this Agreement, you may not access or otherwise use the Site. To the extent applicable, the terms of this Agreement are incorporated into the agreement between a Buyer and a Seller for the sale of Equipment. If you have any questions regarding this Agreement, please contact CustomerCare@ironplanet.com.au.

Amendment. IronPlanet may, at its sole discretion, change, modify, add or remove any portion of this Agreement, in whole or in part, from time to time and at any time without notice to you, by posting such changes on the Site. Your continued use of the Site and the Service after such changes are posted will constitute your agreement to such changed Agreement. This Agreement was last revised on the date specified at the top of this Agreement.

Definitions. In this Agreement:

(a) a "business day" is a day that is not a Saturday, Sunday, or public holiday in Brisbane, Queensland;

(b) "GST" has the meaning given by A New Tax System (Goods and Services Tax) Act 1999.

(c) "Losses" or "LOSSES" means all liabilities, losses, damages, costs and expenses suffered or incurred by any person whether arising in contract, tort (including negligence), statute or otherwise;

(d) "Personnel" of IronPlanet means (i) the officers, employees, contractors and agents of IronPlanet or any of its Related Bodies Corporate; and (ii) the officers, employees, contractors and agents of the contractors of IronPlanet or any of its Related Bodies Corporate.

(e) "Related Body Corporate" has the meaning given to that term in the Corporations Act 2001 (Cth);

(f) "Second Chance Offer", means an irrevocable offer open for two (2) business days, which may be made by the Seller within seven (7) days after an Owner Auction in which the reserve price was not met, to sell the Equipment the subject of that Auction to the to the highest bidder at a price equal to that bidder's maximum bid amount; and

(g) "Security Interest" means (A) any lien, charge, pledge, security interest or encumbrance, howsoever arising; (B) any other legal or equitable interest in Equipment other than that of the Seller; or (C) any other claim adverse to the Buyer taking free and clear title to the relevant Equipment.

Interpretation. In this Agreement, except where the context otherwise requires:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

(d) a reference to A$, $A, $AUD, dollar or $ is to Australian currency;

(e) a reference to time is to Brisbane, Queensland time;

(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; and

(g) the meaning of general words is not limited by specific examples introduced by "including", "for example" or similar expressions.

I.     Participation Requirements

Capacity to Contract. These Services are available only to individuals or entities who can form legally binding contracts. Without limiting the foregoing, neither minors in any jurisdiction nor individuals who have been suspended from the Services may participate in IronPlanet's Services.

Registration. In order to participate in the Services, users must register with IronPlanet by filling out a registration form and providing the information requested by IronPlanet. You must ensure that all information you provide to IronPlanet is (and remains) correct, accurate, complete and not misleading and must immediately notify IronPlanet of any changes to ensure this information remains current. When IronPlanet has notified users that their registration form has been approved, such user shall become a "Registered User". IronPlanet reserves the right to disapprove, suspend or terminate your registration for any reason, at its sole discretion, and to prohibit you from participating in the Services.

Login ID, Password and Security. During the registration process, you will select a login ID and password. You are solely responsible in all respects for all use of and for protecting the confidentiality of your login ID and password. You agree to notify IronPlanet immediately of any unauthorized use of any login ID and password or any other breach of security regarding the Services.

IronPlanet's Relationship to Users. From time to time, IronPlanet may have title to or possess Equipment and may list that Equipment on the Site, in which case it will, in addition to the rights and obligations of IronPlanet under this Agreement, have the rights and perform the obligations of a Seller under this Agreement in respect of that Equipment. In respect of all other Equipment and Auctions, you acknowledge that: (a) IronPlanet is not a party to any transaction relating to Equipment and IronPlanet is only a venue for Registered Users ("Sellers") to list Equipment and for other Registered Users ("Bidders") to make bids on such Equipment; b) IronPlanet is not a party to the transactions between Bidders and Sellers, nor is it involved in those transactions other than by facilitating them through the Services; and (c) IronPlanet has no control over the Sellers, Bidders or any aspect of the transactions.

Release. In the event that you have a dispute with one or more users, you release IronPlanet and its Personnel from all claims, demands and Losses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

Information Control. You acknowledge that: (a) IronPlanet cannot control the information provided by users which is made available through the Services (b) IronPlanet has no control over the quality, safety or legality of the Equipment listed by users, the truth or accuracy of the listings by users or any other information provided by users about the Equipment (however, any defects in the Equipment detected in an inspection by IronPlanet's Personnel will be listed on the Site); and (c) consequently, you must use caution and common sense when using the Site. If you find information on the Site to be offensive, harmful, incomplete, inaccurate, false, misleading, or out of date, or information or Equipment on the Site to be unsafe, in contravention of law or otherwise inappropriate, ("Inappropriate Material") you must immediately notify IronPlanet in writing providing full details of the Inappropriate Material and not bid in any auction to which the Inappropriate Material relates (unless and until such material is removed). Except to the extent the exceptions in section VII apply, neither IronPlanet nor its Personnel are liable for any Losses arising from or on connection with Inappropriate Material that is created by users, but IronPlanet will use all reasonable endeavours to remove material of which it is notified under this provision that it considers to be Inappropriate Material.

Inspections. IronPlanet inspectors will not operate Equipment during the inspection process but will require the Seller to do so. Observable deficiencies in the operation of the Equipment will be notified in the inspection report the Seller shall indemnify, defend and hold IronPlanet and its affiliated businesses, and their employees, agents, officers and directors, harmless from any damage of or injury to the inspected Equipment, personnel, or other property that occurs during the operation of Equipment during the inspection process, unless such damage or injury is the direct result of the willful negligence or gross misconduct of the inspector. You acknowledge that IronPlanet inspections are performed solely for the purpose of reporting on the visible condition of the major systems and attachments of an item of Equipment on the day of the inspection. Observed conditions may be complemented by the measurement of selected parts and the results of fluid sampling. IronPlanet inspections are not designed nor intended to detect latent or hidden defects, possible hazardous defects with the equipment, or conditions that could only be found in connection with the physical dismantling of the machine or the use of diagnostic equipment or techniques. In no event shall IronPlanet or its Personnel be liable for the identification of such defects or for any Losses arising from or in connection with such defects. Oil samples, if taken, will be analyzed by an independent laboratory unaffiliated with IronPlanet. You acknowledge and agree that IronPlanet makes no warranty or representation as to the accuracy of such laboratory information and will not be liable for any Losses arising from or in connection with inaccuracies in such information. The Seller must not operate, modify, lease, rent, use, repair or otherwise alter the Equipment, and must properly secure and prevent damage to the Equipment, between the date of inspection and the date of sale. If the Seller fails to do so the inspection will be void and the Seller must advise IronPlanet, who will require another inspection and the seller will be required to pay a Reinspection Fee of $350. The entire risk of loss of the Equipment shall continue to be borne by the Seller until such time as ownership is transferred to another party. In no event will IronPlanet be held liable for any damage to Equipment incurred before or after the inspection, or during the transportation of the Equipment to the Buyer. The Inspection Reports, including any photographs taken of Equipment, will be the property of IronPlanet and cannot be republished or used without IronPlanet's prior permission. If as a result of the Seller's breach of any of its obligations under this clause IronPlanet suffers or incurs, or is likely to suffer or incur, any Losses (including liability in connection with clause VI 'IronClad Assurance') in addition to any other remedy it may have under this Agreement or otherwise, IronPlanet may set off those Losses against any payment made by the Buyer to the designated secure payment account and that otherwise would be payable to the Seller.

Occupational Health and Safety Act. IronPlanet does not warrant that any Equipment offered for sale on the Site is safe for use or that use of that Equipment by an employee of the Buyer or any other person will comply with any Occupational Health and Safety laws and regulations, or similar laws, ("OHS Laws") in any jurisdiction.

IronPlanet may have risk assessments conducted on some Equipment by independent risk assessment companies and or inspectors who will provide their assessment as to the level of risk, if any, that may exist with use of a piece of Equipment. However, to comply with OHS Laws, IronPlanet recommends that all Buyers carry out hazard identification, risk assessments and control of risk measures before permitting use of or using any Equipment.

II.    Listing Equipment for Auction

Auction Listing Terms. In order to auction your Equipment in a Featured Auction or an Owner Auction, you agree to abide by the Auction Listing Terms which are hereby incorporated by reference and located at http://www.ironplanet.com.au/pop/consignment_printable_aus.jsp .

III.     Auctions

Auction Period. The Auction period shall be determined by IronPlanet and will end at either a time to be determined by IronPlanet or a three-minute period of no bidding activity, whichever is later.

Bidder Conduct. You acknowledge and agree that once you have placed a bid, you may not retract the bid. In addition, sale price manipulation of any kind, directly or indirectly, by users is prohibited, including bidding through a secondary account, agent or assigns on equipment that you are selling, by communicating with other Bidders and Sellers, or by shill bidding.

GST. All bids will be deemed to be exclusive of any applicable GST unless specified otherwise.

Binding Offer to Purchase. If: (a) you are the highest Bidder at the end of a Featured Auction and have met the applicable opening bid; (b) you are the highest Bidder at the end of an Owner Auction and have met the reserve price (if any) set by the Seller ("Reserve Price"); or (c) you accept a Second Chance Offer extended by the Seller, ("Buyer") you are obligated to complete the transaction with the Seller for, if you accept a Second Chance Offer, the amount specified in that offer, or otherwise, the amount of your final bid, ("Buy Price"), plus the applicable Transaction Fee to IronPlanet, unless the transaction is prohibited by law or this Agreement. Bidders agree that bidding on the IronPlanet Site is the legal equivalent of a binding purchase order.

Motor vehicles - General. In this provision, "motor vehicle" has the meaning given to it in section 15 of the Property Agents and Motor Dealers Act 2000 (Qld) and includes all motor vehicles within the meaning given to that term in section 1 of the Fair Trading (Code of Practice for Motor Vehicle Traders) Regulations 1996 (Tas). If you are the Buyer or Seller of a motor vehicle on the Site: (a) you acknowledge that this Agreement, the applicable Buy Price, any warranty or other document IronPlanet provides you in relation to the motor vehicle in accordance with its statutory obligations, and, to the extent applicable, the NT Additional Documentation, constitute the contract for the sale of that motor vehicle ("Motor Vehicle Contract"); (b) you acknowledge that by making the Motor Vehicle Contract available to you on the Site (and, if all parts of the Motor Vehicle Contract are not available on the Site, by providing you with all such other parts of the Motor Vehicle Contract), IronPlanet has provided you with a copy of the Motor Vehicle Contract; and (c) you must sign two copies of the Motor Vehicle Contract and return one copy to IronPlanet within five business days of a request from IronPlanet. Registerable motor vehicles may be sold unregistered. All vehicles sold by IronPlanet will not have a statutory warranty. The Buyer must ensure that the motor vehicle has all registrations required in the relevant jurisdiction (including, in the case of an unregistered vehicle, by taking all necessary steps to obtain those registrations) before using the motor vehicle.

Void Bids. IronPlanet reserves the right to reject or void bids, whether winning or not, which it believes have not been made in good faith, are intended to manipulate the Auction process, or are prohibited by applicable law.

Winning Bids. IronPlanet is the one and only judge for the determination of winning bids, but you acknowledge and agree that neither IronPlanet nor its Personnel shall not be liable for any Losses arising from or in connection with any errors or omissions relating to such determination, whether by IronPlanet or some other person.

Postponement and Cancellation. IronPlanet reserves the right to postpone or cancel any Featured Auction or Owner Auction, or any sale resulting there from, in its own discretion, without notice. You acknowledge and agree that neither IronPlanet nor its Personnel will have any liability for Losses arising from or in connection with any withdrawal, cancellation or postponement of Auctions or sales.

Opening Bid Prices. IronPlanet reserves the right to set the opening bid prices which may be subject to variation prior to the commencement of an auction.

IV.    Fees and Commissions

IronPlanet's fees and commissions for Sellers are available at http://www.ironplanet.com.au/sell/fees.jsp and are hereby incorporated by reference. Fees for Buyers are located at http://www.ironplanet.com.au/buy/buy_fees.jsp. IronPlanet may change its fees, payments and commissions from time to time, but no such change shall apply retroactively to Equipment already listed for an Auction.

V.     Completion of Transactions

Liability for Equipment. The Equipment shall be and remain at the risk of the Seller (and not IronPlanet) until the Equipment is removed from the posted Equipment location by the Buyer or the Buyer's designated transportation provider. The equipment shall be and remain at the risk of the Buyer and/or, if so agreed with that transportation partner, the Buyer's designated transportation provider (and not IronPlanet) while in transport. The equipment shall be and remain at the risk of the Buyer once delivered to the designated location. In no event will IronPlanet or its Personnel be held liable for any Losses arising from or in connection with damage to Equipment incurred before or after the inspection, or during the transportation of the Equipment to the Buyer.

IronPlanet makes no warranty that the Equipment will properly function or operate when delivered to the Buyer; nor that it will continue to operate or function for any period of time after delivery. Except to the extent specified under section VI, neither IronPlanet nor its Personnel are liable for any Losses arising from or in connection with the functioning or inoperability of Equipment.

Transaction Fee. A buyer's premium of: (a) for items with a final sale price of $2,500 or less, 8% of the final sales price (plus GST where applicable); or (b) for items with a final sales price of $2,501 or more, the greater of $200 or 2.7% of the final sale price (plus GST where applicable), with a maximum fee of $850 (plus GST where applicable), ("Transaction Fee") is payable on a successful bid. All fees, including this Transaction Fee, must be paid prior to the Seller releasing the Equipment for pick-up and transport or the Buyer collecting the Equipment.

Payment. Full payment from the winning Bidder in the amount of the auction closing price and the Transaction Fee must post to a secure payment account designated by IronPlanet within three (3) business days after the close of the Auction for the piece of Equipment. Buyers may make payments by depositing cleared funds into that account (including by way of electronic funds transfer). Additionally, Buyers from Australia may make payments by way of a bank cheque. At the time of making payment, Buyers must identify the reference number provided by IronPlanet for that purpose.

Buyer Default. If, after five (5) business days after the close of the Auction for the piece of Equipment, the Buyer does not make full payment in accordance with the payment schedule and terms set forth above, the Buyer is considered in default and shall be subject to a Default Fee which is set forth on the IronPlanet Site. In addition, the Buyer will be barred from further use of the IronPlanet Site until the Default Fee is paid and full payment is made. The parties acknowledge and agree that the Default Fee is a reasonable pre-estimate of IronPlanet's loss arising from the Buyer's default.

Buyer Removal of Equipment. Buyers are responsible for loading and shipping the Equipment for transportation, unless otherwise noted in the Equipment listing. Sellers agree to have the Equipment available for transportation to the Buyer no later than one (1) business day after the conclusion of the auction for the piece of Equipment. Buyer may remove the Equipment from the Seller's location only once the total purchase price (and the Transaction Fee) and any applicable Default Fee has been paid, in accordance with the above, into the account designated by IronPlanet and has been received by IronPlanet as cleared funds in that account. If a Buyer has not removed the Equipment from the Seller's location within eight (8) business days after the close of the Auction for the piece of Equipment, a Buyer will be responsible for directly paying the Seller any and all storage fees levied by the Seller.

Abandonment of Equipment. Seller may deem Buyer's failure to claim property within thirty (30) days following a final sales transaction to be evidence of Buyer's intent to abandon the property and any claim to it. Where Buyer fails to claim property within thirty (30) days following a final sales transaction, Seller may take action that is adverse to Buyer's interest in the property without liability to Buyer for Losses arising from or in connection with such action, including any appropriate steps under law to dispose of the property through IronPlanet which will remit proceeds to the abandoning Buyer, net of actual and reasonable costs and a twenty-five (25%) percent commission.

Freight and Transportation. The Buyer is responsible for all freight, shipping and other costs related to transporting the Equipment from the posted Equipment location, including any costs associated with certificates and/or permits required to move the Equipment within or across state, province and/or country borders. Buyers are advised to have all such certificates and permits issued and completed prior to transporting the equipment; otherwise Buyer may be subject to cleaning, permit, and/or other fees if the Equipment is stopped and held at a port of entry to a state, province or country. Buyers may arrange transportation of Equipment on the IronPlanet web site through a third party, but, subject to the exceptions in section VII, IronPlanet is not liable for any Losses arising from or in connection with any acts or omissions arising from such third party transportation and claims no responsibility for the actions of any transportation provider. All Buyers, regardless of their chosen transportation arrangement, must submit delivery and carrier selection information to the IronPlanet Site prior to picking-up the equipment in order to generate equipment release documents. Buyers may not transport the Equipment until full payment and the Transaction Fee has been received by and posted to a secure payment account designated by IronPlanet.

Constructive Receipt. Once Constructive Receipt has occurred for any given piece of Equipment, remittance of proceeds to the Seller may occur. Any dispute claims filed by the Buyer after Constructive Receipt pursuant to the IronClad Assurance are invalid, as set forth in Section VI. Constructive Receipt of Equipment occurs at the first occurrence of any of the following milestones (unless a dispute claim has been previously filed by the Buyer), provided full payment has been received by IronPlanet for the Equipment: (a) At the time the Equipment leaves the point of pick-up at the Seller's location, if the Buyer elects to transport the Equipment itself rather than use a common carrier. Buyers transporting the Equipment themselves are encouraged to examine the Equipment thoroughly prior to removing it from the Seller's location; (b) At the time the Equipment leaves the point of pick-up at the Seller's location if Equipment is self-transporting, such as a truck. Buyers of self-transporting Equipment are encouraged to examine the Equipment thoroughly prior to removing it from the Seller's location; (c) Ten (10) business days after the conclusion of the Auction for the Equipment; (d) 24 hours after delivery of the Equipment to the Buyer's designated location, if purchased Equipment is sold from Australia and is subsequently delivered within Australia. (If the expiration of the 24-hour period falls on a day other than a business day, Constructive Receipt on the basis of the passing of this milestone will not occur until the next business day). If purchased Equipment is sold from Australia and is subsequently to be delivered outside Australia, Constructive Receipt on the basis of the passing of this milestone will occur 24 hours after Equipment delivery to the Australian port of export. (e) At the time the Buyer or the Buyer's agent begins disassembly of equipment from its as-inspected configuration, including disassembly for transport.

Remittance of Proceeds to Seller. IronPlanet shall remit the total purchase price less any commission or fees to Seller for such Equipment within ten (10) business days of the later of Buyer's receipt of any title documents (if applicable) and Constructive Receipt of Equipment by the Buyer. Payments will be made by either direct deposit into the Seller's nominated Australian bank account (including by way of electronic funds transfer) or, if requested by the Seller, by cheque (subject to additional fees for express postage or overnight courier, if required).

Ownership Certification, Verification and Security Interest Searches. Sellers are responsible for providing Equipment to Buyers or IronPlanet (as appropriate) free of all Security Interests. In its sole discretion, IronPlanet may carry out searches of Security Interests and title searches to investigate the Seller's title to the Equipment and the existence Security Interests on or in the Equipment that may compromise the transfer of clear title in the Equipment to a Buyer. IronPlanet may charge the Seller a fee for this verification. If the Seller fails to remove any Security Interest on or in any Equipment sold by it or fails to perform or comply with any of its other obligations contained in this Agreement, IronPlanet may at its sole discretion remove such Security Interest using Seller proceeds or refund to the Buyer a portion or all of the purchase price of the Equipment (as appropriate) and cancel the transaction, and in such case Seller must pay to IronPlanet an amount equal to all Fees IronPlanet would have earned for the transaction had it proceeded (including fees from the Buyer ("Buyer Fees")). If IronPlanet is unable to recover Buyer Fees from the Seller and the Security Interest was known or capable of discovery by the Buyer, it may, at its discretion, instead recover such Buyer Fees from the Buyer on demand. The Seller shall pay IronPlanet upon demand all of IronPlanet's expenses and payments incurred in connection with any removal of any Security Interest, as the case may be, together with interest thereon at the rate if 10% per annum compounded daily. No such payment or performance by IronPlanet shall be deemed to waive breach by the Seller, or relieve the Seller, of its obligations under this Agreement.

VI.    IronClad Assurance

IronPlanet's Inspection Reports are prepared by knowledgeable inspectors and, subject to the limitations described in this clause and in clause I 'Participation Requirements', are as comprehensive as possible. Each report includes an inspection summary, detailed component evaluation and numerous pictures. A proper and careful review of all the available equipment pictures provides a more accurate and thorough description of used equipment condition than can be obtained from reading a short written comment. With used equipment "a picture is worth a thousand words". IronPlanet's IronClad Assurance is based on knowledgeable Buyers who both read our condition evaluation and also review each picture carefully to make the best bidding and buying decision possible.

As Equipment is used and ages, it becomes impractical to describe each scratch, dent, minor defect or maintenance repair. Therefore, conditions that can be seen in the equipment pictures stand as additions to the written narrative description. IronClad Assurance does not cover disputes concerning conditions visible in any of the Inspection Report equipment pictures (including the full-size image visible through zooming), even if these conditions are not specifically mentioned in the written narrative comments. Don't be a disappointed Buyer, review all the equipment pictures!

If a Buyer discovers and reasonably concludes that Equipment purchased by the Buyer is not substantially in the condition as represented in the Inspection Report, and Constructive Receipt of the Equipment, as detailed in Section V has not occurred, IronClad Assurance protection permits the Buyer to submit a written claim to IronPlanet. All items constituting the basis for the dispute must be identified, in writing, in the claim. In addition, all valid claims are also subject to the following conditions:

1. Determination of a changed condition will be made only after a re-inspection of the Equipment by IronPlanet and a comparison of the re-inspection results with the initial IronPlanet inspection.

2. Only conditions found by the Buyer to be substantially different than reported in the IronPlanet Inspection Report may be disputed. Leaks of any kind (including tires) that are found by the Buyer, but which are not reported on the inspection report, may not be disputed. Conditions or defects which are beyond the scope of an Inspection Report and are therefore not disputable include those which: can be identified only through the operation of a machine on a job site, e.g. digging or lifting; can be identified only by operating the machine through the full range of speeds required to evaluate all forward and reverse gears; those which require the replacement or addition of an attachment to the machine; can be identified only by disassembly or the use of diagnostic or test equipment in order to evaluate such characteristics such as engine compression.

3. If the Buyer submits a dispute claim, the Buyer must not use the piece of Equipment from the time of submission of the dispute to the time the dispute is resolved. The customer must have the Equipment available for immediate re-inspection upon IronPlanet's request and not make any changes to the condition of the Equipment; including disassembling or making any repairs, until the dispute is resolved.

4. IronPlanet shall not be liable in connection with any dispute arising from an Inspection Report unless the Buyer has made the purchase of the relevant Equipment and has paid all fees through the secure payment account designated by IronPlanet.

5. The pick-up location for the purchased Equipment must be in Australia.

6. IronPlanet makes every effort to accurately describe equipment using common industry terms. However, items of Equipment can be known by different terms in different geographic locations. Buyers must refer to the pictures contained in the Inspection Report to clarify their understanding of specific Equipment characteristics. IronPlanet is not responsible for misinterpretation or oversight by the Buyer.

7. IronPlanet is not responsible for dispute claims filed if the Buyer operates, leases, rents, or in any way causes or allows the Equipment to be used or operated prior to the expiration of the time periods identified in paragraph V., Completion of Transactions, above. The only exception to this is operation necessary to move the Equipment around the lot, to load/unload the Equipment, or to verify the reported inspection condition after receipt of the Equipment. In any event, IronPlanet shall not be liable for any dispute relating to a difference in the Equipment hour meter of more than five (5) hours or ten (10) odometer kilometers from the Inspection Report.

8. IronPlanet shall not be responsible for dispute claims filed if the Equipment is damaged by the Buyer or the transportation company.

9. IronPlanet shall not be responsible for equipment operating manuals or keys. The absence of either or both of these items, or costs related thereto, are not the basis for a valid dispute.

10. IronPlanet shall not be responsible for dispute claims filed due to changes in Equipment condition as a result of exposure to the elements (wind, rain, snow, sleet, etc.) such as leaky seals, belts/pulleys, hoses, corrosion, paint fade, window grazing, water contamination or fuel contamination. Furthermore, IronPlanet shall not be liable for failure of Electronic Control Modules for systems or components nor for electronic displays, dead batteries or lights.

11. The estimated total cost to fix Equipment the subject of a valid dispute must exceed $500. If IronPlanet determines that a claim is valid it will pay the Buyer the determined value of the claim less $500.

12. IronPlanet suggests to each Buyer that lubrication, cooling, hydraulic and air conditioning systems be serviced in accordance with the manufacturer's specifications prior to the machine being put onto a job site. Disputes based on system failures due to a lack of lubrication or other appropriate servicing before the Buyer puts the machine to work will not be covered by IronClad Assurance. IronPlanet personnel will evaluate lubrication and maintenance records of post-sale servicing and oil sample results from failed components as part of the of the dispute resolution process.

In the event of a valid claim, IronPlanet may either refund the full purchase price to the Buyer (inclusive of the Transaction Fee) and reimburse the Buyer for any expenses incurred when initially transporting the Equipment from the Seller to the Buyer's location, or IronPlanet may settle such claim in another mutually beneficial manner for the Buyer (subject to a $500 deductible).

Adjudication of Equipment Dispute. IronPlanet will be solely responsible for the review and adjudication of any dispute. All determinations made by IronPlanet shall be final.

VII.     Disclaimer; Limitation of Liability; Indemnity

Exceptions. The exclusions and limitations of liability set out in the following provisions of this section VII do not apply:

(a) to the warranties and conditions ("Implied Terms") implied into this Agreement under Division 2 of Part V of the Trade Practices Act 1974 (Cth) ("TPA"), and, to the extent applicable, section 12ED of the Australian Securities and Investments Commission Act 2001 (Cth) and the Fair Trading Acts (and Consumer Affairs and Fair Trading Acts) of Australian states and territories, in relation to:

(ii) IronPlanet's Services or Site:

(A) to the extent those services are of a kind ordinarily acquired for personal, domestic or household use or consumption; or

(B) failing that, to the extent the price of those services is $40,000 or less, in which case the liability of IronPlanet and its Personnel for any loss, cost, damage or expense arising from or in connection with a breach of the Implied Terms (other than a condition or warranty implied by section 69 of the TPA) in relation to those services is limited to (at IronPlanet's option) the supply of those services again, or the cost of having those services supplied again; and

(ii) Equipment:

(A) to the extent that Equipment is of a kind ordinarily acquired for personal, domestic or household use or consumption; or

(B) failing that, to the extent the price of that Equipment is $40,000 or less, in which case the liability of the Seller (and, to the extent applicable, that of IronPlanet and its Personnel) to you for any loss, cost, damage or expense arising from or in connection with a breach of the Implied Terms (other than a condition or warranty implied by section 69 of the TPA) in relation to that Equipment is limited to (at IronPlanet's option) the repair or replacement of the Equipment, the supply of equivalent Equipment, or the cost of repairing or replacing the Equipment or of acquiring equivalent Equipment; or

(b) Otherwise, to the extent that their application would contravene any applicable statute (including other provisions of Part V of the TPA) or cause any part of this agreement to be void or unenforceable.

You acknowledge that the Implied Terms contain provisions in relation to merchantability of goods and the fitness of goods and services for certain purposes, among other provisions.

Disclaimer. EXCEPT TO THE EXTENT SET OUT IN THE FOREGOING EXCEPTIONS AND CLAUSE VI 'IRONCLAD ASSURANCE', THE EQUIPMENT, SITE AND SERVICE, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE OR THE SERVICE (INCLUDING THE INSPECTION REPORT), ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IRONPLANET DOES NOT WARRANT THAT THE EQUIPMENT, SERVICE OR THE FUNCTIONS, FEATURES OR CONTENT INCLUDING THE INSPECTION REPORT CONTAINED THEREIN OR IN THE SITE WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. IRONPLANET AND SELLER MAKE NO WARRANTY THAT THE EQUIPMENT, SITE OR SERVICE WILL MEET BUYERS'/USERS' REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING EQUIPMENT ON THE SERVICE OR THE SITE, THE LISTED EQUIPMENT WILL BE SOLD OR WILL BE SUITABLE FOR ANY PURPOSE. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY SERVICES ON THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICE. IRONPLANET MAKES NO WARRANTY REGARDING ANY EQUIPMENT OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM IRONPLANET OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IRONPLANET EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY EQUIPMENT SOLD ON OR THROUGH THE SERVICE, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER USER.

Limitation of Liability. EXCEPT TO THE EXTENT SET OUT IN THE FOREGOING EXCEPTIONS, IN NO EVENT SHALL IRONPLANET, ITS PERSONNEL OR THE SELLER BE LIABLE TO YOU:

(a) EXCEPT TO THE EXTENT SET OUT IN CLAUSE VI 'IRONCLAD ASSURANCE', FOR ANY LOSSES ARISING FROM OR IN CONNECTION WITH (i) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE EQUIPMENT; OR (ii) DEFECTS IN SUCH EQUIPMENT; OR

(b) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PURE ECONOMIC LOSS DAMAGES OR FOR ANY OTHER LOSS OF USE, OPPORTUNITY, REVENUE, PROFIT (WHETHER ANTICIPATED OR OTHERWISE), BUSINESS, SALES, CAPITAL, GOODWILL, DATA , OR DOWNTIME COSTS, THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICE, THE SITE OR ITS CONTENT INCLUDING THE INSPECTION REPORT AND MATERIALS AND FUNCTIONS RELATED THERETO, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, EVEN IF IRONPLANET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT TO THE EXTENT SET OUT IN THE FOREGOING EXCEPTIONS AND CLAUSE VI 'IRONCLAD ASSURANCE', IN NO EVENT SHALL THE TOTAL LIABILITY OF IRONPLANET AND ITS PERSONNEL TO YOU FOR ALL LOSSES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SITE AND THE SERVICES EXCEED, IN THE AGGREGATE (AT IRONPLANET'S ELECTION), $100.00, THE SUPPLY OF THOSE SERVICES AGAIN, OR THE COST OF HAVING THOSE SERVICES SUPPLIED AGAIN.

Indemnity. You agree to defend, indemnify and hold harmless IronPlanet and its Personnel from all Losses, claims and demands of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, to the extent arising out of or in any way connected with: (a) any breach or violation by you of this Agreement; (b) any use by you of the Site or Services; (c) any disputes or damages arising out of your use of or contracts formed with you through this Site or the Services; or (d) your failure to pass full title to your Equipment, free of all Security Interests, to the Buyer of that Equipment.

VIII.     General Provisions

Eligibility. Only Registered Users are eligible to participate in IronPlanet's Services.

Prices. All prices are listed according to their value in Australian dollars.

Invoicing. Except where fees and commissions are deducted from sale proceeds or another timeframe for payment applies, fees and commissions due to IronPlanet are payable on demand and may be set off from any amounts IronPlanet owes to you or deducted from any amounts IronPlanet holds on your behalf. IronPlanet may also invoice you for fees and commissions due and payable under this Agreement, in which case those fees and commissions will be payable within the time stated on the invoice, or, if no time frame is provided, within 5 business days.

Taxes and GST. (a) IronPlanet is registered for an ABN and GST. Its ABN is 98 125 389 442; (b) Sellers and Buyers will be responsible for GST, Stamp Duty Tax and any other taxes applicable to any sales or purchases of Equipment. IronPlanet strongly recommends Sellers and Buyers consult the Australian Taxation Office and/or seek the advice of a tax professional if they are uncertain as to their taxation obligations; (c) Sellers must advise IronPlanet of their GST registration status at the time of registration and if registered must provide their ABN; (d) Buyers who require a tax invoice in respect of the purchase of Equipment should contact the relevant Seller directly to request one; (e) All fees, commissions and Transaction Fees due to IronPlanet are stated on a GST exclusive basis. IronPlanet is entitled to and will deduct from the sale proceeds, an additional 10% of the fee, commission or Transaction Fee amount on account of GST, except where a Seller or Buyer notifies IronPlanet on the registration form that it is a non-resident of Australia and is not registered or required to be registered for GST in Australia, in which case, IronPlanet will not deduct any additional amount for GST.

No Price Manipulation. You must not manipulate the price of listed Equipment by any means, including by using secondary accounts, colluding with third parties, or bidding on your own Equipment or engaging in or allowing, suffering or permitting any shill bidding. You must not use an alias to place bids on any Equipment you are selling, either directly or indirectly for any reason. If you breach this provision, IronPlanet may, without limiting other rights available to it at law, withdraw the Equipment from auction on the Site and bar you from future use of the Site.

Shill Bidding Penalty. If IronPlanet determines that a seller or someone associated with a seller has bid on that seller's own item, shill bidding penalties will be assessed against the seller. IronPlanet will ban the seller from future use of IronPlanet websites, IronPlanet will cancel the involved transaction(s) and the seller will be charged the full Seller Default Penalty of 25% of the equipment final auction price.

Arbitration. YOU AGREE TO MEDIATE AND ARBITRATE ANY DISPUTE OR CLAIM BETWEEN OR AMONG YOU AND ANY OTHER USER OR IRONPLANET ARISING OUT OF OR RELATING TO USE OF THE SERVICES OR SITE, THIS AGREEMENT, ANY SALE OF EQUIPMENT, ANY INSPECTION REPORT OR ANY OTHER TRANSACTION CONTEMPLATED BY THIS AGREEMENT INCLUDING ALL CONTRACT AND TORT CLAIMS (INCLUDING THOSE MADE IN NEGLIGENCE), STATUTORY CLAIMS, CLAIMS FOR RELIEF WHETHER EQUITABLE OR LEGAL, ISSUES OF ARBITRABILITY, AND DISPUTES ABOUT THE SCOPE OF THIS CLAUSE. DISPUTE RESOLUTION SHALL BE CONDUCTED PURSUANT TO THE FOLLOWING PROCEDURES. BEFORE INITIATING ANY ARBITRATION, THE DISPUTING PERSONS ("DISPUTANTS") SHALL ENGAGE IN MEDIATION, WHICH IS A PROCESS IN WHICH PERSONS ATTEMPT TO CONFIDENTIALLY RESOLVE ANY DISPUTE BY SUBMITTING IT TO AN IMPARTIAL, NEUTRAL MEDIATOR WHO IS AUTHORIZED TO FACILITATE THE RESOLUTION OF THE DISPUTE BUT WHO IS NOT EMPOWERED TO IMPOSE A SETTLEMENT. MEDIATION SHALL BE CONDUCTED IN BRISBANE, QUEENSLAND, BY A MEDIATOR AGREED BY THE DISPUTANTS (AND FAILING THAT, APPOINTED BY IRONPLANET, OR, IF IRONPLANET IS A PARTY TO THE MEDIATION, BY THE AUSTRALIAN COMMERCIAL DISPUTES CENTRE SHOULD MEDIATION PROVE UNSUCCESSFUL TO RESOLVE THE DISPUTE, THEN, WITHIN ONE YEAR OF THE DISPUTE ARISING, A DISPUTANT MUST MAKE A DEMAND FOR ARBITRATION. THE DISPUTANTS SHALL RESOLVE THE DISPUTE THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION TO BE CONDUCTED PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF THE AUSTRALIAN CENTRE FOR INTERNATIONAL COMMERCIAL ARBITRATION ("ACICA") A SINGLE NEUTRAL ARBITRATOR BEING A RETIRED JUDGE AGREED BY THE DISPUTANTS (AND FAILING THAT, APPOINTED BY IRONPLANET, OR, IF IRONPLANET IS A PARTY TO THE ARBITRATION, BY ACICA). THE SEAT OF ARBITRATION SHALL BE BRISBANE, QUEENSLAND. THE LANGUAGE OF THE ARBITRATION SHALL BE ENGLISH. THE PROCEDURAL AND SUBSTANTIVE LAW TO BE APPLIED TO AND IN THE ARBITRATION SHALL BE THE LAW OF THE STATE OF QUEENSLAND, EXCEPT FOR ITS CONFLICT OF LAW PRINCIPLES. THE ARBITRATOR SHALL BE BOUND TO APPLY THE LAW, INCLUDING THE RULES OF EVIDENCE, AND SHALL BE EMPOWERED TO HEAR AND DETERMINE DISPOSITIVE MOTIONS INCLUDING MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT. THE DISPUTANTS SHALL HAVE THE RIGHT TO CONDUCT TWO DEPOSITIONS OF EACH OPPOSING DISPUTANT. THE ARBITRATOR SHALL HAVE THE RIGHT TO ISSUE INJUNCTIONS AND OTHER EQUITABLE REMEDIES AND AWARD COMPENSATORY DAMAGES. THE ARBITRATOR SHALL HAVE NO POWER TO PUNITIVE OR TREBLE DAMAGES, ANY OTHER MANNER OF ENHANCED DAMAGES BEYOND THE SCOPE PERMITTED BY SECTION VII OF THIS AGREEMENT. THE PREVAILING DISPUTANT IN ANY ARBITRATION SHALL HAVE THE RIGHT TO AN AWARD OF LEGAL FEES AND COSTS. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING AND ANY PARTY TO THE DISPUTE MAY SEEK TO CONFIRM THE AWARD OF THE ARBITRATOR IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN BRISBANE, QUEENSLAND AND ENFORCE THE AWARD AS A JUDGMENT. EXCEPT FOR THE FILING OF A JUDICIAL ACTION TO CONFIRM, MODIFY, VACATE, OR ENFORCE AN ARBITRATOR'S AWARD, INCLUDING THE AWARD OF AN INJUNCTION OR OTHER EQUITABLE REMEDY, WHICH FILING IS PERMISSIBLE, ANY DISPUTANT WHO INITIATES LITIGATION, OR WHO INITIATES ARBITRATION WITHOUT FIRST MEDIATING A DISPUTE, SHALL FORFEIT ANY AND ALL RIGHT TO LEGAL FEES AND COSTS AS A PREVAILING DISPUTANT, AND SHALL REIMBURSE ANY OTHER PARTY TO THE LITIGATION FOR THEIR FULL COSTS OF ENGAGING IN THE LITIGATION OR ARBITRATION INCLUDING LEGAL FEES AND COSTS ON A SOLICITOR AND OWN CLIENT BASIS.

Third Party Links. Where IronPlanet provides links to third party Internet sites, no representations or endorsements are made in connection with such sites. IronPlanet is not liable for any Losses or injury arising from use of such sites.

Modification and Availability. IronPlanet may, at any time, delete, modify or supplement the content of this Site without prior notice. IronPlanet reserves the right, for any reason, at its sole discretion, to terminate, change, suspend or discontinue any aspect of the Site or the Service, including content, features or hours of availability. IronPlanet may also impose limits on certain features of the Service or restrict your access to part or all of the Site or the Service without notice or penalty.

Monitoring. You agree that IronPlanet has the right, but not the obligation, to monitor at any time, for any reason at its sole discretion, all material and content on the Site and the Service. IronPlanet reserves the right at all times to edit, disclose or refuse to post any material or information or request removal of or remove any material or information from the Site.

Access and Interference. You agree that you will not use any automatic device or manual process to monitor or copy IronPlanet's Site, its web pages or the content contained herein. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on IronPlanet's infrastructure.

Service Integrity. IronPlanet makes reasonable commercial efforts to make its Service and Site available at all times. However, IronPlanet is not responsible for, nor liable for Losses arising from or in connection with, any service interruptions, including interruptions that may affect the receipt, processing and acceptance of bids or other aspects of an auction or sale.

Termination. This Agreement constitutes a legally binding agreement between you and IronPlanet until terminated, which IronPlanet may do at any time, without notice: (a) for cause, if you breach a term of this Agreement; or (b) for convenience, at IronPlanet's sole discretion. If you become dissatisfied with the Service or the Site, in any way, your only recourse is to immediately discontinue use of the Service and pay any required Removal Fee, if applicable. You may then terminate this Agreement by written notice to IronPlanet. Notwithstanding termination of this Agreement, you remain obligated to complete any transactions you have entered into in relation to the Site or Services, subject to the terms of this User Agreement.

Jurisdiction. This Agreement is governed by the law of Queensland and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of Queensland.

Copyright and Trademarks. The trademarks, tradenames, designs and all material contained on this Site, including all portions of the web site, content, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of IronPlanet or its licensors. The use of any such property for any other reason, on any other web site, or the modification, distribution or republication of this material without the prior written permission from IronPlanet is strictly prohibited.

Survival. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement (or failing that, severed from this Agreement), and the remainder of this Agreement shall continue in full force and effect. Subject to the exceptions in section VII, you must commence any cause of action arising out of or related to the Service or this Agreement within six (6) months after the cause of action arises; otherwise, such cause of action is permanently barred and neither IronPlanet, its Personnel nor other users are liable for any Losses to which that barred cause of action relates. This Agreement comprises the entire agreement between you and IronPlanet and supersedes all prior agreements between the parties, regarding the subject matter contained herein. All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability, and any other term intended to survive termination, shall survive any termination of this Agreement.

Privacy. You must comply with IronPlanet's Privacy Policy, which is located at http://www.ironplanet.com.au/main/privacy_aus.jsp and is hereby incorporated by reference.

Approvals and consents. Except where this Agreement expressly states otherwise, IronPlanet may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement

Assignment and transfer. You may only assign this agreement or a right under this agreement with the prior written consent of IronPlanet.

Further action. You must, at your own expense, do everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.

Waiver. IronPlanet does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy by IronPlanet does not prevent another or further exercise of that or another right power or remedy. A waiver of a right, power or remedy by IronPlanet must be in writing and signed.

Relationship. Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

Order of precedence. If there is any inconsistency between the provisions of the documents that together form this Agreement, the documents will prevail in the following order to the extent of that inconsistency: (a) this document; (b) the Auction Listing Terms; and (c) all other documents forming part of this Agreement.

Entire Agreement. These terms set out the entire understanding between IronPlanet and customers, users, Sellers, Buyers and Bidders with respect to the use of this Site. No other terms, whether express or implied, shall apply unless specifically incorporated by reference herein or subsequently agreed by the parties.