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ESS SIMS: New Break Clause Offer

Today, 10 January 2023 the CMA has announced that following the offer of commitments by ESS, including a further break-clause offer (the “Commitments”), it is closing its investigation into ESS’ conduct in relation to its move from one-year to three-year Annual Entitlement agreements. 

What is ESS doing?

ESS is offering the Commitments, which will allow eligible customers to apply to an independent Adjudicator for a new 12-month break clause (the “New Break Clause”) in their 3-year Annual Entitlement agreement that commenced on 1 April 2022.  Successful applicants will be able to exit their agreements on 31 March 2024 if they give notice of their wish to do so to ESS between 1 January 2024 and  29 February 2024.

Applying for the New Break Clause

Eligible ESS customers can apply for the New Break Clause using the PDF Application Form or Word Application Form.  The form should be read in conjunction with the Application Instructions, which includes the terms and conditions of the New Break Clause offer.  The guidance given to the Adjudicator for assessing applications can be found in the Briefing.  ESS’ General Submission to the Adjudicator can be found here. The CMA’s Commitments Decision can be found here.

To be eligible to apply a customer must have a current 3-year Annual Entitlement agreement with ESS commencing on 1 April 2022 that includes Core SIMS and have not taken up any of the July Offers (which are set out below).  

The deadline for Applications for the New Break Clause is 5.00pm (UK time) on Friday 10 February 2023.

 

 

 

July Offers

Group 1 offer

We have been asked by a small number of customers who have contracted to move to a new MIS supplier on or before 30th September 2022 and who have decided to exercise, or have already exercised, their break clause right, to extend their existing Annual Entitlement (AE) agreement because, for reasons outside their control, they are unable to move to their new MIS supplier by 30th September 2022 when their existing ESS AE agreement expires. To accommodate these requests, we have decided to make available the following three new software and support extension offers.

Background

If you have a perpetual licence for your SIMS and/or FMS software, then you are entitled to install this software on servers in your premises and to use this software in perpetuity. 

ESS provides updates to this software, including updates that allow you to perform statutory returns, at least three times annually, with updates for statutory returns being provided no later than the term before the statutory return is due. 

Customers who are licensed to use SIMS and/or FMS, and who have a current AE agreement with ESS at the time a software update is released, are entitled to receive and use these updates while they remain licenced users. Accordingly, if you do not have a perpetual licence, and rely upon the software licence included in your AE agreement to licence your SIMS and/or FMS software, then on termination of your AE agreement you will no longer be entitled to continue using SIMS and/or FMS and you should delete all unlicensed copies of ESS software from your systems.

This means that if you are a customer without a perpetual licence who has a break clause in their new 3-year AE agreement and you validly exercise your break clause right to terminate your AE agreement on 30th September 2022, then you will not be able to produce statutory returns using SIMS and/or FMS from 1st October 2022 onwards.

(i) 4-month software licence extension offer

If you are a customer without a perpetual software licence for core SIMS and/or FMS and have validly exercised a break clause right to terminate your AE agreement on 30th September 2022, having already contracted to move to a different management information and/or financial management system supplier, and for any reason your new supplier cannot migrate you to their system by 30th September 2022, ESS is offering a 4-month software licence extension that will allow you to use SIMS and/or FMS to produce statutory returns during the 2022 autumn term.

If you meet these conditions and would like to take up this offer, please contact us at break@educationsoftwaresolutions.co.uk. In response we will provide you with a quotation and terms, which you should accept by 14th October 2022 if you wish to take up the offer. 

Your email should include “ESS001 - 4-month software licence extension offer”, your school’s name, postcode, DfE number and the quotation number of the AE agreement for which you wish to request the licence extension together with evidence that you have already contracted with an alternative supplier with services due to commence by 30th September 2022. 

(ii) 4-month technical support extension offer

If you have validly exercised a break clause right to terminate your AE agreement on 30th September 2022 but continue to require technical support for your licensed SIMS and/or FMS software during the period 1st October 2022 to 31st January 2023, ESS is able to provide you with a 4-month 1st, 2nd and 3rd line technical support agreement, which will include the provision of any relevant software patches released by ESS during the term of the agreement. 

Please note that If your SIMS and/or FMS software licence expires on 30th September 2022, to take up this offer you will need to also take up the software licence offer set out in (i) above. 

If you meet these conditions and would like to take up this offer, please contact us at break@educationsoftwaresolutions.co.uk. In response, we will provide you with a quotation and terms, which you should accept by 14th October 2022 if you wish to take up the offer.

Your email should include “ESS001 - 4-month technical support extension offer”, your school’s name, postcode, DfE number and the quotation number of the AE agreement for which you wish to request the technical support extension. 

(iii) A combined software licence, technical support and software update extension offer

If you have a new 3-year core SIMS and/or FMS AE agreement that includes a break clause allowing you to terminate this agreement on 30th September 2022, and you validly exercise this break clause right; and

a) you have contracted with an alternative supplier to switch away from SIMS and/or FMS by 30th September 2022 prior to exercising your break clause right; but

b) for reasons outside of your control your alternative supplier fails to switch your school to their system before 30th September 2022 and is unable to reschedule the switch before the 2023 spring term:

then:

  • for customers with perpetual core SIMS and/or FMS software licences, ESS will offer a 6-month agreement running from 1st October 2022 to 31st March 2023, which will include access to 1st, 2nd and 3rd line technical support and software updates and that will allow you to produce 2023 spring term statutory returns, subject to your agreeing to terminate your perpetual core SIMS and/or FMS software licences from 31st March 2023.

  • for customers without perpetual core SIMS and/or FMS software licences, ESS will offer a 2-month agreement running from 1st February to 31st March 2023, which will include a software licence and access to 1st, 2nd and 3rd line technical support and software updates released in the period from 1st October 2022 to 31st March 2023, provided that the customer has taken up the 4-month software licence and technical support extension offers set out in (i) and (ii) above. This agreement will allow customers to produce 2023 spring term statutory returns and will ensure that customers without perpetual licences will be able to benefit from the same overall 6-month extension period as customers with perpetual licences.

If you meet these conditions and would like to take up this offer, please contact us at break@educationsoftwaresolutions.co.uk.  In response, we will provide you with a quotation and terms, which you should accept by 9th December 2022 if you wish to take up the offer.  

Your email should include “ESS001 - A combined software licence, technical support and software update extension offer”, your school’s name, postcode, DfE number and the quotation number of the AE agreement for which you wish to request the extension together with evidence that you have already contracted with an alternative supplier with services due to commence by 30th September 2022 and that the supplier is now unable to switch you by that date.

Please note that:

  • If your new 3-year AE agreement includes a break clause, to validly exercise your break clause rights you must first have paid your AE invoice and any other outstanding ESS invoices in full.

  • Neither the 4-month technical support agreement nor the 4-month software licence extension includes access to software updates that will allow you to undertake 2023 spring term statutory returns.

  • SIMS Support Units are contractually unable to provide support for SIMS and/or FMS users who do not have a current AE agreement with ESS, so if you require SIMS and/or FMS technical support after you have terminated your AE agreement this can only be obtained from ESS.

  • If your new 3-year AE agreement includes a break clause, to validly exercise your break clause rights you must first have paid your AE invoice and any other outstanding ESS invoices in full.

  • Any licence / service provided under the Extension Offer arrangements will be provided on comparable commercial terms to those ESS uses to provide these licences / services to schools who currently contract with ESS directly for the provision of equivalent licences / services.

 

Group 2 offer

ESS is making available a 12-month break clause offer to any customer who has already entered into a standard 3-year AE agreement with ESS for core SIMS and/or FMS AE services commencing on 1st April 2022 and that was not subject to a 6-month break clause right, provided that the customer: 

(i) can provide objective evidence that:,

  1. at the time ESS made its 6-month break clause offer (being from 12th January 2022 to 20th February 2022), it had a clear intention to switch to an alternate supplier; and

  2. did not apply for the break clause because it reasonably concluded that it would be unable to switch to an alternative supplier in the time available for reasons outside its control; and

(ii) consequently, did not request the 6-month break clause.

By way of illustration, objective evidence of, for example, a clear intention to switch would include an email to ESS sent during the break clause offer period stating such an intention.

If you qualify for this offer, to apply please email us at break@educationsoftwaresolutions.co.uk before 30th September 2022, sending your email from the email address which you used to accept your AE agreement.

Your email should include "ESS002 - Conditional Break Clause Offer", your school's name, postcode, DfE number and the quotation number of the AE agreement for which you wish to request the break clause right, together with the evidence that supports your application, which you should include objective evidence of both your intent to switch and your inability to switch in the time available.

If your evidence reasonably and objectively demonstrates that you meet the criteria set out above, ESS will offer you a 12-month break clause right from the date your application is finally determined. Any break clause right so offered will be conditional upon your having paid all your unpaid ESS invoices in full prior to the exercise of your break clause right.

For the avoidance of doubt, this offer is only open to schools who genuinely satisfied the above criteria at the time ESS made its break clause offer (being the dates above). If ESS, acting reasonably, has cause to suspect that a misrepresentation has been made in this regard ESS will not be able to accommodate your request.

The 12-month break clause will only be capable of being exercised between 30 and 90 days prior to the break clause date. You will only be offered the opportunity to terminate the entire AE agreement that is covered by the quotation number you supply. Partial termination will not be permitted.

If you terminate your AE agreement using the 12-month break clause right and subsequently request to recontract for some of the services provided under that agreement, ESS reserves the right to amend its charges to take account of the reduction in scope.

For perpetual licence holders the break clause right will be conditional upon your agreeing to terminate your SIMS and/or FMS perpetual licence from the break clause date (i.e., 12 months after the break clause is granted). Detailed break clause terms will be provided and will need to be accepted by customers for the break clause right to apply.

 

Group 3 offer

A small number of customers who were refused break clauses on the grounds that they failed to apply for the break clause offer and/or to accept their Annual Entitlement (AE) quotation, by the 20th February 2022 deadline appealed ESS’ decision. The appeals process was rigorous and fair, and a third of appeals were accepted.

None-the-less, as a gesture of goodwill, ESS has decided to offer a new 9-month break clause offer to any customer who accepted an AE quotation on or before 31st March 2022 and who also applied for the 6-month break clause offer by this date but were refused a break clause because they failed to apply for the break clause offer, or they failed to accept their AE quotation, by the 20th February 2022 deadline.

If you qualify for this offer, to apply please email us at break@educationsoftwaresolutions.co.uk before 30th September 2022, sending your email from the email address which you used to accept your AE agreement.

Your email should include "ESS003 - Further Conditional Break Clause Offer", your school's name, postcode, DfE number and the quotation number of the AE agreements for which you wish to request the break clause right.

The 9-month break clause will only be capable of being exercised between 30 and 90 days prior to the break clause date. You will only be offered the opportunity to terminate the entire AE agreement that is covered by the quotation number you supply. Partial termination will not be permitted.

If you terminate your AE agreement using the 9-month break clause right and subsequently request to recontract for some of the services provided under that agreement, ESS reserves the right to amend its charges to take account of the reduction in scope.

For perpetual licence holders the break clause right will be conditional upon your agreeing to terminate your SIMS and/or FMS perpetual licence from the break clause date (i.e., 9 months after the break clause is granted). Detailed break clause terms will be provided and will need to be accepted by customers for the break clause right to apply.