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Thread: Agency Contract question

  1. #1
    Curtis was supposed to LOVE ME MoxieMoth's Avatar
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    Agency Contract question

    Hi everyone,

    I took a look at the sticky threads for this info but couldn't find anything that answers my question exactly, so I'll ask here. I have an offer of rep with an established, legit agency, and I'm trying to parse their contract before signing. I'm confused about:
    If circumstances arise whereby the Author is unable to meet the deadlines of a Publisher or
    engages in any action, or lack, thereof constituting in a breach of the Publishing Agreement, and
    publisher demands the return of an advance that has already been received, it will be the author’s
    sole responsibility to return the said advance including commissions already earned by the Agent
    for the sale of the said project. The Agent will not be required to return any commissions earned.

    Is this typical? I fully intend to meet deadlines and to never breach a publishing agreement, so perhaps this isn't something to worry about...but still. Should the author be responsible for reimbursing their advance and whatever portion has already gone to the agent, while the agent gets to keep commission? I completely understand the other side -- it'd be unfair to return income based on someone else's inability to meet agreed upon terms/conditions. So, just curious.

    Thanks

  2. #2
    Not as sweet as you think Aggy B.'s Avatar
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    Should the agent be required to return money they have earned by selling your book if you fail to do the work you've promised? I would think not. If you breach the contract, it would make sense that you are responsible for the financial reimbursement - not the agent who has (theoretically) done what they are supposed to.
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  3. #3
    Curtis was supposed to LOVE ME MoxieMoth's Avatar
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    Yeah, that's how I'm reading this, but there's other language in the contract that's flagging for me. For instance:

    The Agent will not be required to return any legitimately received commissions should the Author-Publisher contract be terminated or if the Author’s Project is unacceptable to the Publisher.

    Again, the agent is protected from returning commission of any sort, but in this instance it has nothing to do with the author breaching a contract. What if my book is sold on proposal, a portion of the advance is paid, and then the book is not accepted? I'm then responsible for paying back the advance, along with the commission for my agent? That feels strange to me.


  4. #4
    Such a nasty woman SuperModerator Old Hack's Avatar
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    It's pretty standard. Not all agents have it in their contracts but I've seen several who do.

    Agents get paid their commissions for the work they do, based on an understanding that their clients are good writers and capable of writing the books they're contracted to write. If the books are not delivered or are turned down because they're plagiarised or not competently written, why should they have to return their commissions?

    So long as you write good books you won't be troubled by this clause.

  5. #5
    Curtis was supposed to LOVE ME MoxieMoth's Avatar
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    Got it! Thanks, both of you! The other thing that I'm having trouble reading through is the Indemnification section. I found a lot on Publisher contracts and indemnification, but not on agent/author contracts. I imagine what shows in this agent contract is resemblant to the protections afforded a publisher, and probably nothing to be worried about, but I would still love any advice. The section reads:

    9. INDEMNIFICATIONIn the event of the assertion of any claim, action, or proceeding inconsistent with any of the foregoing representations and warranties, (a) the Agents shall have the right to defend the same through counsel of its own choosing, and (b) the Author shall fully cooperate in the Agents’ defense and shall indemnify and hold harmless the Agents, from and against any and all liability, damage, loss, expense (including attorneys’ fees to the extent provided below), and settlement costs, resulting from any such claim, action or proceeding, provided that no settlement covered by this indemnity shall be effected by the Agents without the prior written consent of the Author, which consent shall not be unreasonably withheld. If such claim, action, or proceeding is successfully defended, or settled as provided above; if such claim, action, or proceeding results in a final judgment or decree against the Agents, the Author will be responsible for the entire amount of such fees. If the Author desires to settle such claim, action, or proceeding and the Agents desire to continue the defense thereof, the Author’s liability under the foregoing indemnity shall be limited to the bona fide settlement amount (evidenced in writing) in respect to such claim, action, or proceeding against the Agents plus the Agents’ attorneys’ fees up to the time that the claimant and the Author agreed upon the amount. If any such claim, action, or proceeding is threatened or instituted, the Agent shall promptly notify the Author and, in the Agent’s sole discretion, may withhold payments due the Author from any payments received from Publishers or other contracts whereby the Agents have represented the Author in procuring such contracts and payments from the same are paid directly to the Agents and held in an escrow account for the Author’s benefit, subject to the Author’s right to draw on such sums to defray expenses of the Agents in defending such claim, action, or proceeding (to the extent covered by this indemnity) and to satisfy and discharge any judgment or decree rendered. In the event that a judgment or decree shall be entered in any court based upon any such claim, action, or proceeding and the Author shall desire to appeal, the Author shall indemnify and hold harmless the Agents, from and against any and all liability, damage, loss, and expense (including all attorneys’ fees) of such appeal and shall furnish and file all bonds necessary to perfect said appeal and to stay execution of any such judgment or decree. If a final adverse judgment or decree is rendered in such action or proceeding and is not promptly paid, bonded, or stayed by the Author, or if costs and expenses (including attorneys’ fees) covered by the foregoing indemnity are not promptly paid by the Author, the Agents may apply the payments so withheld to the satisfaction and discharge of such judgment or decree and to the payment of such costs and expenses.

    Irrespective of the foregoing, the Agents shall have the right at any time on their own behalf and expense to settle any such claim, action, or proceeding without the Author’s consent. In the event that the Agents settle such claim without the consent of the Author, they shall then be precluded from indemnification by the Author.


    Again, perhaps this is standard. I don't anticipate any legal issues but, should something happen, I do want to know what I'm responsible for in terms of $.

    Thank you again!!
    Last edited by MoxieMoth; 09-13-2017 at 07:36 PM.

  6. #6
    Such a nasty woman SuperModerator Old Hack's Avatar
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    I appreciate that you're worried, but we can't help you with every single clause in the contract, nor can we give you legal advice on how to interpret the contracts. For that you need a lawyer, or advice from the Society of Authors if you're in the UK. You should find someone who is suitably qualified to give you the in-depth advice you're hoping for, I think.

  7. #7
    Herder of Hamsters AW Admin's Avatar
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    Quote Originally Posted by MoxieMoth View Post
    Again, perhaps this is standard. I don't anticipate any legal issues but, should something happen, I do want to know what I'm responsible for in terms of $.

    Thank you again!!
    You could always contact Victoria Strauss at Writer Beware.

  8. #8
    Curtis was supposed to LOVE ME MoxieMoth's Avatar
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    Quote Originally Posted by Old Hack View Post
    I appreciate that you're worried, but we can't help you with every single clause in the contract, nor can we give you legal advice on how to interpret the contracts. For that you need a lawyer, or advice from the Society of Authors if you're in the UK. You should find someone who is suitably qualified to give you the in-depth advice you're hoping for, I think.

    Makes total sense, and I have. Both a lawyer and another literary agent are going to take a look. I really appreciate the AW help, too. Thanks!

  9. #9
    Rewriting My Destiny Cyia's Avatar
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    You're showing one agency's contract to another? Not sure that's the best of ideas, dude.

  10. #10
    Curtis was supposed to LOVE ME MoxieMoth's Avatar
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    Nope, not showing. Just asking what to expect from a friend who's savvy with this sorta stuff.

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