Commercial in Confidence
All information, creative ideas, data, reports, accounts or other documents enclosed shall be and remain the property of First Years. You shall not advertise, publish or release any information within this document to anyone without prior written consent from First Years. First Years has the right to refuse such consent. Quotes are valid for 14 days from cover date and all information is to be digitally supplied.
Project timeline will be strictly adhered to by First Years, but our progress is dependent on client feedback and supply of requested information. Additional daily rates apply after the timeline period.
Project cancellation by the client at any period after the deposit is paid will incur an 25% cancellation fee of the entire project. First Years has the sole discretion to cancel the agreement at any time with a written 7 day notice and any outstanding moneys will be recouped.
Payment of deposit agrees to all terms and conditions above and at firstyears.com.au/first-years-terms-conditions
The information presented by First Years and it’s employees are recommendations and as such do not guarantee that implementation of these will generate a higher quality rating. These recommendations are specific to certain quality areas and as such further consultation should be sought from First Years, prior to implementation.
The assessment process, conducted by the state regulatory authority, determines the quality rating of a service and as such First Years takes no responsibility of a similar or lower rating.
Key risks for a service
There are a number of risk factors, both specific to the proposed project and of a general nature, which may, either individually or in a combination, affect the future operating and financial performance of the proposed project.
The recommendations presented may not be implemented effectively by management or staff of a service, therefore First Years takes no responsibility for any loss of income, damage to property or death of child, staff or visitor of the service.
Despite implementing recommendations, business or rating does not grow due to unforeseen circumstances, such as environmental disaster or dispersion of population in the area. In this instance, First Years and it’s employees cannot be held liable for any loss of income to business.
Key Risk Factors
Changes in Law and Government Policy
The childcare industry in Australia is heavily regulated with the National Law and supporting regulations providing a detailed and prescriptive framework for the management and operation of childcare businesses in Australia.
Any change or addition to the laws, regulations, or government policy imposed by the Commonwealth, state and territory, or local governments, or changes to their interpretation or enforcement, could affect the operation of the service and could impact on the profitability of the proposed project. Any regulatory or policy change could include, but not be limited to, the level of funding provided by the government and changes that may increase current forecast operating costs.
Furthermore, changes to the requirements under the NQF such as staff-to-child ratios and staff qualification requirements may increase expenses incurred.
Changes to Government Assistance
The Commonwealth Government provides substantial assistance to the childcare industry, and users of the childcare industry, through schemes such as the CCB and the CCR. These schemes are subject to review at any time by the Commonwealth Government. In December 2013, the Productivity Commission released an issues paper enquiring into childcare and early childhood learning in Australia. The Productivity Commission will report on and make recommendations on matters referred to in the paper, including the CCB and the CCR. The Productivity Commission has delivered its final report to the Commonwealth Government on 20 February 2015.
The Coalition Government announced on 10 May 2015 its $3.5 billion New Jobs for Families package, which if passed to go ahead will see the current Child Care Benefit and Child Care Rebate replaced with one single childcare payment paid directly to the service. Any reduction in the funding level (or the proportion of funding allocated to childcare services) as a result of this or changes to the eligibility criteria of these schemes will have a significantly adverse impact on the operations of the proposed project.
Regulatory Risk and Assessment and Rating Process
The regulation and availability of government assistance depend on individual childcare services being registered under the NQF. Representatives of the ACECQA administer the assessment and rating process, including inspections of a childcare service. Negative evaluations such as “significant improvement required” could result in the loss of registration and the withdrawal of government assistance for an individual service. Should this occur, this would have a negative impact on the proposed project’s operations and financial position.
The ability of the proposed project to operate the childcare service is dependent on having the requisite regulatory approval. Under the National Law, the owner must obtain a provider approval. If the relevant regulatory approval is withdrawn, or not obtained when sought, the owner will not be permitted to operate the relevant service. This could materially impact the project’s future earnings.
Increased or New Competition
The market for childcare and early education services in Australia is competitive. The proposed project will compete with other long day care and outside school hours care providers. Competition is primarily based on the quality of care offered, the location of a childcare service, and cost.
In order to compete effectively, the proposed project must meet each of these competitive challenges from existing market participants and respond effectively to any changes in the competitive landscape. The competitive landscape may evolve, for example, through the entry of new competitors into the market, the consolidation of existing market participants, or a change in government policy that affects the distribution of public funding to the childcare and early education services industry.
Any increase in competition or deterioration in the competitive position of the proposed project could have a material adverse impact on the proposed project’s financial position.
Sourcing of High Quality Staff
The proposed project is reliant on its ability to attract and retain high quality staff. There is a risk that a lack of high quality staff may negatively impact the performance of the proposed project.
Changes to Industrial Relations Laws
If the proposed project is in a high-risk industry in terms of the impact of restricted labour markets and labour reform and to the extent that these changes result in less flexibility for the proposed project and employees in agreeing terms of employment. This may result in increased labour costs, compliance costs, and potentially higher costs from industrial disputes. Further changes to industrial relations laws may result in additional labour and compliance costs.
Inability to Increase Fees
In preparing the results set out in the Forecast Financial Information, it is assumed certain fee increases over the Forecast Period in the proposed project. If fee increases cannot be passed on due to regulation or market driven events, then the lower fee income will result in reduced profitability and actual results may differ from the Forecast Financial Information.
If the proposed project is exposed to the potential risk of damages claims in the event of a child being incapacitated, injured, or harmed in any way either while at a childcare service or in transit to or from the service while under the control of a proposed project employee. Any such claim could, because of the age of the injured party, take many years to be finalised.
Any decline in the birth to 5 years’ age bracket of the Australian population could reduce the profitability of the proposed project. As the underlying demand for childcare is driven by the numbers of children in this age bracket, changes in the expected number of children in this bracket will have an impact on the industry and on the proposed project.
Female Workforce Participation
The labour force participation rate of women with children in childcare is a key determinant of the size and profitability of the market for childcare. Any decline in the workforce participation rate of women may impact the demand for childcare services, and may have an adverse impact on the industry and on the proposed project.
By Client. Client agrees to indemnify, save and hold harmless First Years Consulting from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances First Years Consulting shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defence and all related settlement negotiations; and (b) First Years Consulting provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by First Years Consulting in providing such assistance.
By First Years Consulting. Subject to the terms, conditions, express representations and warranties provided in this Agreement,First Years Consulting agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with First Years Consulting representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies First Years Consulting in writing of the claim; (b) First Years Consulting shall have sole control of the defence and all related settlement negotiations; and (c) Client shall provide First Years Consulting with the assistance, information and authority necessary to perform First Years Consulting obligations under this section. Notwithstanding the foregoing, First Years Consulting shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unorthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by c55.
Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF FIRST YEARS CONSULTING IS SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES, TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE PRODUCTION COST OF FIRST YEARS. IN NO EVENT SHALL FIRST YEARS BE LIABLE FOR ANY, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY FIRST YEARS CONSULTING, EVEN IF FIRST YEARS CONSULTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Modification / Waiver. This Agreement may be modified by First Years Consulting without notice.
No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
Force Majeure. First Years Consulting shall not be deemed in breach of this Agreement if First Years Consulting is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of First Years Consulting or any local, state, federal, national or international law, governmental order or regulation or any other event beyond First Years Consulting control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, First Years Consulting shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Australia and the state of N.S.W without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the National Alternative Dispute Resolution Advisory Council (NADRAC), or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the party’s specifically consent to the local, state and federal courts located in the state of N.S.W. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that First Years Consulting will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that First Years Consulting shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document and Detailed Terms and Conditions within this document.
Client Agreement and Acceptance.
PAYMENT OF A NEW PROJECT DEPOSIT IS AN ACKNOWLEDGMENT, UNDERSTANDING, AGREEMENT AND ACCEPTANCE OF THE PROJECT PROPOSAL, INVOICE, AND ALL CONDITIONS CONTAINED ON THIS TERM AND CONDITIONS PAGE.