ESS SIMS 3 Year Contracts

[simpsonj]

- They waited until November to tell us when our notice needs to be given by 31st December

 

Is this still the case?

 

From my reading of the 'Clarity for the future' email you don't have to inform them by 31st of December, you can renew at any point upto or including 31 March 2022, or after that date if necessary.

 

If you wish to renew your SIMS contract on the new basis of a three-year term, we have asked that you inform us by 31 December 2021, but you do not have to. You can renew at any point up to or including 31 March 2022 or indeed any point thereafter. It is up to you.

[mavhc]

To be fair they have said that they are recruiting developers

 

Oh yeah, because they outsourced all the work and now no one knows how the code works, what a super great plan.

 

It'll take 3 years before the new programmers understand the existing system

[paulkerton]

Is this still the case?

 

From my reading of the 'Clarity for the future' email you don't have to inform them by 31st of December, you can renew at any point upto or including 31 March 2022, or after that date if necessary.

 

Yes. Contractually you have to give them 90 days notice.

If you don't give them that, it renews. So cancel before the 31st if you're exploring your options and then you can go back to them if you need to.

 

Don't, whatever you do, rely on the idea that they will honour your wish to leave inside the 90 day period.

[mthomas08]

Is this still the case?

 

From my reading of the 'Clarity for the future' email you don't have to inform them by 31st of December, you can renew at any point upto or including 31 March 2022, or after that date if necessary.

 

I'll double check with the guy at SIMs and see what he says.

 

We did get told that notice needs to be given by the 31st and no later. If we can do this later, it makes our life a little bit easier.

[Damon]

Yes. Contractually you have to give them 90 days notice.

If you don't give them that, it renews. So cancel before the 31st if you're exploring your options and then you can go back to them if you need to.

 

Don't, whatever you do, rely on the idea that they will honour your wish to leave inside the 90 day period.

 

There is no 90 notice period for renewal as the current contract is being terminated. You are not opting to renew, you are opting whether to enter a new 3 year contract. Hence, you have up to the 31st March 2022 to decide.

[paulkerton]

There is no 90 notice period for renewal as the current contract is being terminated. You are not opting to renew, you are opting whether to enter a new 3 year contract. Hence, you have up to the 31st March 2022 to decide.

So if I opt not to notify ESS/SIMS at all, then my contract will automatically expire on 31st March 2022?

Edited December 9, 2021 by paulkerton

[simpsonj]

So if I opt not to notify ESS/SIMS at all, then my contract will automatically expire on 31st March 2022?

 

From the email:

 

If we don’t hear from you by 31 December 2021, we will invite you to confirm certain details, including your pupil numbers, via the Portal by 1 February 2022. If you don’t update these details, we will assume they are unchanged. We will then issue an invoice for the relevant amount on or around 1 March 2022. Although we will issue you with an invoice, it will not mean that you are committed to renewing for the three-year term. To renew requires your express consent, which you can give via the Portal, or in writing, or by email to [email protected] or by paying our invoice.

If you choose not to renew your Annual Entitlement agreement it will expire on 31 March 2022. If you subsequently renew, any new agreement will be backdated to 1 April 2022 and will ensure that you receive all software updates that have been issued since the expiry of your previous agreement.

[ABR82]

Our Data Manager was told by our account manager yesterday that the Government are making an announcement today about it all. I would have thought they're still in hiding, but we'll see!

 

I suspect the Govt might be looking for anything at all they can make an announcement about today to get the current news cycle moved on...

 

ESS/SIMS will be receiving a nicely timestamped email from us.

 

Sadly for them our parentpay renewal is up next year and our new MIS should be able to handle all our payments too. Not that I have much against parentpay, but it makes more sense to integrate everything from a parents' point of view. Rather unfortunate for them that their misguided and unpleasant action towards their loyal customers has resulted in the loss of business for other divisions within their company.

[Seb1780]

It looks like our LA are miffed! This is the message we got today, it's most unusual for Suffolk CC to get animated about anything not directly related to Ed Sheeran.

 

We understand that LA schools have received a communication with regards to the SIMS Service and clarity for the future.

 

Suffolk County Council were made aware last week that ESS were intending to communicate directly with schools and expressed our concern at this.

 

We have been aware that they wish to change the arrangements under which they contract and have been attempting to fully understand the reasons for this and the implications and benefits to schools in Suffolk.

 

At the moment, Suffolk County Council have a contract in place with ESS until 31st March 2025. We then contract with LA maintained schools on an annual basis. We are aiming to confirm our position with ESS this week, which is likely to include the need for us to conduct a stakeholder engagement exercise with all schools impacted. We also need to complete our due diligence on their proposals. We hope to be in a position to confirm all of this in the next week or so.

 

And before anyone says it - Yes, most of us *are* directly related to Ed, at least that's what we claim.

[paulkerton]

So they've upset Schools, LAs, Academy chains, Support Organisations...

 

Basically they've decided to go for a scorched Earth policy

[mavhc]

The people at the council who's job is to support SIMS seem really positive about it...

[fiza]

As schools will have to sign up for a 3 year contract if they dont have time/wish to do a quick tender for a new supplier and in the renewal notice they have been told that Year 1 prices will remain the same but year 2 & 3 prices could change. Does this mean that when it comes to Year 2 and 3 that ESS could substantially increase the price and schools have no comeback as they were warned that prices would be going up?

[paulkerton]

As schools will have to sign up for a 3 year contract if they dont have time/wish to do a quick tender for a new supplier and in the renewal notice they have been told that Year 1 prices will remain the same but year 2 & 3 prices could change. Does this mean that when it comes to Year 2 and 3 that ESS could substantially increase the price and schools have no comeback as they were warned that prices would be going up?

Everyone here has read those clauses differently, so I would definitely get the school's retained legal teams to read that and determine what they're actually saying with those clauses.

[mavhc]

Get them to publish an unambiguous contract, no one should sign until they republish it and send it to everyone, and then paste it here so we can mock it again

[jmak]

From the email:

Everyone here has read those clauses differently, so I would definitely get the school's retained legal teams to read that and determine what they're actually saying with those clauses.

Clearest bit if information that I've seen in this thread is in the email simpsonj copied. It seems unambiguous that you're not committed to anything until you sign the new agreement because it's not a renewal. Also useful that they confirm that if you don't sign by 31st March 2022 but change your mind later, they will backdate the agreement to that date and provide any updates that have been released in the mean time.

 

To me that means no pressure to cancel at this point (there's nothing to cancel) and that there's no chance that they wouldn't take you back even after your contact has expired, never mind leaving it to the last minute. Just spend the next couple of months investigating and then either migrate or don't.

[supportman]

Clearest bit if information that I've seen in this thread is in the email simpsonj copied. It seems unambiguous that you're not committed to anything until you sign the new agreement because it's not a renewal. Also useful that they confirm that if you don't sign by 31st March 2022 but change your mind later, they will backdate the agreement to that date and provide any updates that have been released in the mean time.

 

To me that means no pressure to cancel at this point (there's nothing to cancel) and that there's no chance that they wouldn't take you back even after your contact has expired, never mind leaving it to the last minute. Just spend the next couple of months investigating and then either migrate or don't.

 

Just a word of warning, but when we left Sims they were very clear we had to cancel before the 31st December otherwise we would have to pay another years costs because they had a 3 month notice period.

 

No idea how this works with the 3 year agreements but we had to cancel the year before to move at Easter time.

[paulkerton]

Just a word of warning, but when we left Sims they were very clear we had to cancel before the 31st December otherwise we would have to pay another years costs because they had a 3 month notice period.

 

No idea how this works with the 3 year agreements but we had to cancel the year before to move at Easter time.

 

Well that's the thing. Apparently the argument here is that this isn't a renewal, its a brand new contract so you do not have to cancel.

But, if you do not contact them, they're still going to invoice you for something that will automatically cancel because its not a renewal.

 

I would still, regardless, take my time to notify them of intention to quit before December 31st. If the assumption is that its a brand new contract and requires consent of the customer as it is not a renewal they shouldn't be invoicing you at all unless they hear an affirmative agreement from you.

 

Also, if what they are saying is true, you should being going through a due dilligence process of checking out the other solutions available, shouldn't you?

[Ditto]

I have three suggestions:

 

• Seek legal advice
  
• Listen to legal advice
  
• Proceed based on legal advice
  

 

Seriously, I doubt ESS would be reluctant to use their legal teams.

 

DfE really ought to comment on this topic again very soon.

[mavhc]

The question is can they raise their prices 500% in year 2 without you being able to cancel.

 

If no, then you can cancel if they raise their prices at all

 

If yes then you shouldn't sign in.

[Rob_D]

The question is can they raise their prices 500% in year 2 without you being able to cancel.

If no, then you can cancel if they raise their prices at all

If yes then you shouldn't sign in.

 

Earlier in the thread there was mention of an max price increase at 2.5%+CPIH.

[mavhc]

15.6 Unless stated to the contrary in the Agreement Summary or the Portal for Software and/or Services, ESS reserves the right to increase the Charges once each year to have effect from the first day of the next annual charging period by a percentage no more than: 2.5% plus the CPIH for the month ending 120 days before the first day of the next annual charging period (“Max Charge Increase”). For example, if the next annual charging period was 1st April 2022 then the CPIH percentage applied would be the CPIH percentage for November 2021. Where practicable, ESS will inform the Customer of such increase no less than 90 days before the first day of the next annual charging period. Furthermore, ESS retains the right to revise the Charges by more than the Max Charge Increase by giving written notice no less than 120 days before the end of the Initial Term and/or any Renewal Term, provided that ESS serves a valid notice of this change. If the Customer does not agree to the increase in the Charges, it may elect to terminate the Agreement in accordance with clause 16.2.

 

16.2 Either party may terminate this Agreement by giving at least 90 days written notice to the other party prior to the end of either the Initial Term or a Renewal Term, such notice to be effective from the end of either the Initial Term or a Renewal Term in which notice of termination is given.

 

 

So the first statement to consider is: Furthermore, ESS retains the right to revise the Charges by more than the Max Charge Increase by giving written notice no less than 120 days before the end of the Initial Term and/or any Renewal Term, provided that ESS serves a valid notice of this change.

 

This means they can increase the Charges by any amount they want.

 

The second statement is: If the Customer does not agree to the increase in the Charges, it may elect to terminate the Agreement in accordance with clause 16.2.

 

However that statement does not specifically say what the "increase in the Charges" refers to. It's not in a subclause containing only the "whatever we want" clause. So it should apply to the entire paragraph.

 

Thus any time the charges are increased the agreement may be terminated.

 

However the question is then when it's terminated. Options are a) after 1 year, or b) after 3 years.

 

If (a) then fine, we'll just get it for one year if they ever increase charges.

if (b) then they just said they can charge us £10000000000 more in year 2 and we can't do anything about it.

[paulkerton]

So, in the definitions section of the contract what do they define as "annual charging period"

 

So, assuming your contract starts on the 1st April, this is how I read it - but I can't stress enough SEEK LEGAL ADVICE NOT UNSOLICITED IT GEEK FORUM ADVICE!

 

15.6 Unless stated to the contrary in the Agreement Summary or the Portal for Software and/or Services, ESS reserves the right to increase the Charges once each year to have effect from the first day of the next annual charging period by a percentage no more than: 2.5% plus the CPIH for the month ending 120 days before the first day of the next annual charging period (“Max Charge Increase”).

 

So at the beginning of December 2022, they can look at the Consumer Price Index for November 2022 and see that inflation is at 4%. So they can charge 2.5% + 4.0% increase for Year 2 of your deal.

 

For example, if the next annual charging period was 1st April 2022 then the CPIH percentage applied would be the CPIH percentage for November 2021. Where practicable, ESS will inform the Customer of such increase no less than 90 days before the first day of the next annual charging period.

 

They will let you know their final decision by 1st January 2023. Which seems to contradict the next bit below...

 

Furthermore, ESS retains the right to revise the Charges by more than the Max Charge Increase by giving written notice no less than 120 days before the end of the Initial Term and/or any Renewal Term, provided that ESS serves a valid notice of this change.

 

They can revise the charges 120 days before the end of your intial agreement or your renewal agreement, and they will need to let you know by the 1st of December. This reading it again means they can't change the 2.5% + CPIH arrangement until the end of the 3 Year Term as it specifically says "initial agreement or your renewal agreement"

 

If the Customer does not agree to the increase in the Charges, it may elect to terminate the Agreement in accordance with clause 16.2

If they change the 2.5% + CPIH part of the contract, they will let you know on renewal by December 1st, and you have till December 31st to say no thanks.

Which realistically means you have 2 and a half weeks. They really should be shifting their agreement dates so they don't land in the middle of when schools are shut for 2 weeks.

Edited December 10, 2021 by paulkerton

[mavhc]

What if they revise them 1000 days before the end of the 3 years?

[Willott]

Here's a little riddle... ESS have certain solutions available on G-Cloud (Hosted service for SIMs being one of them). G-Cloud agreements do not have a minimum term, but do have a maximum term of 2yrs (plus extension periods). So ESS must be able to provide contracts shorter than 3yrs, otherwise they wouldn't be able to sign any G-Cloud contracts - and if that's the case, do CCS need to remove them fully from G-Cloud?

[TechMonkey]

Here's a little riddle... ESS have certain solutions available on G-Cloud (Hosted service for SIMs being one of them). G-Cloud agreements do not have a minimum term, but do have a maximum term of 2yrs (plus extension periods). So ESS must be able to provide contracts shorter than 3yrs, otherwise they wouldn't be able to sign any G-Cloud contracts - and if that's the case, do CCS need to remove them fully from G-Cloud?

 

Surely if, as some have pointed out, current contracts end. New contract is sourced through G-Cloud, 2 years instead of 3. Profit. Must get them in deep doo doo if they offer something on the Gov portal but switch to other terms when signing?